Opinion
No. FA01-0165427-S
April 27, 2007
MEMORANDUM OF DECISION
INTRODUCTION
Presently before the court are two postjudgment motions to modify. The first motion, dated and filed on December 7, 2005 by the plaintiff, Laura Butler n/k/a Gary (hereinafter referred to as "the Plaintiff"), is a Motion to Modify Custody, wherein the Plaintiff seeks joint custody and primary residence of the two minor children, Alexa (d.o.b. 2/16/97) and Morgan (d.o.b. 5/14/98).
The second motion, dated December 7, 2005 and filed December 9, 2005 by the defendant, Piers Butler, Jr. (hereinafter referred to as "the Defendant"), is a Motion, for Order to Relocate, wherein the Defendant seeks to relocate with the two minor children to England.
The court heard testimony from many witnesses and received into evidence more than a hundred exhibits over the course of eleven days of trial.
BACKGROUND
The marriage between the parties was dissolved on December 6, 2000 in the State of Illinois. Thereafter, by agreement, although at different times, both parties relocated to the State of Connecticut. The Illinois judgment was certified and filed as a foreign matrimonial judgment in the State of Connecticut in May 2001.
In the spring of 2002 both parties had various postjudgment motions before the court, seeking essentially to modify custody. At the time, the minor children were primarily residing with Plaintiff, and Defendant had reasonable rights of visitation. The motions were heard over the course of several days. The court (Leheny, J.) issued its ruling in a written Memorandum of Decision dated May 1, 2003. The court's findings of fact as of May 2003 reveal that the parties were in significant conflict at that time. Regrettably, for the minor children, not much has changed. The findings of the court in May 2003, being the most recent custodial modification and currently existing order, are the context for this court's review of the pending motions of the parties.
By way of background, the court notes the following from the court's findings of May 2003:
It is clear that the Plaintiff falsely accused the Defendant of sexual impropriety with the minor children, although the court did conclude that Alexa witnessed something via computer or television, ". . . while with her father which she perceived to be 'naked men and women kissing peepees and turning somersaults.' "
The court further found that the Plaintiff disregarded the original Illinois decree relative to the parties' agreement to relocate to Connecticut. The parties agreed to relocate to "Woodbury and Litchfield, CT." The Defendant moved to Woodbury; the Plaintiff to New Canaan. The court found that the Plaintiff "was motivated to move to Fairfield County by her desire to restrict court-ordered contact between the girls and their father."
The court also found that the Defendant ". . . decided not to exercise mid-week visitation. He did not offer or attempt to take the children out in New Canaan during the week. As a result, his midweek visitation did not occur."
The court further found that the Defendant did attempt, on two occasions, to be involved in Alexa's preschool. The Plaintiff, ". . . had provided the school authorities with a copy of the divorce documents from Illinois and discussed the situation with them. It is not known what instructions Gary (Plaintiff) gave to the school, but it is clear authorities were concerned when Butler visited the school and read stories to the class. On the first occasion, Gary called the police. On the second occasion, the school called authorities."
Communication was clearly a problem for the parties then, as it is now.
The court went through an exhaustive list of examples of the Plaintiff's interference with the Defendant's parenting time, all incidents found inexcusable. The court further found, "Butler is his own worst enemy." Similar to what this court witnessed, Judge Leheny noted, "He has been angry with his counsel in court and obviously displeased at times with her advice to him."
Although the court found that the children are delighted to be with the Defendant, Judge Leheny found that ". . . he did not consider his children's need to spend uninterrupted time with him." Further, he had been ". . . less attentive to the children's health and safety needs than Gary. He has also been less supportive of the children's need for therapy, considering it 'stupid.' "
The court noted the findings from court-ordered psychological evaluations performed by Anne Phillips, Ph.D.:
As to the Plaintiff, the court noted relative to Dr. Phillips's findings, that she is ". . . hypervigilant interpersonally . . . to avoid criticism or rejection . . . she is apt to be subservient and self denying, both undermining self-confidence and building resentment in the process . . ."
". . . [S]he over-relies on denial and leaves herself vulnerable to episodic outbursts of built-up, emotion . . . She is vulnerable to experiencing her emotions urgently but indirectly, with physical symptoms rather than emotional awareness.
". . . Her failure to consider her own anxiety symptoms more carefully may interfere with her ability to discriminate her fears from the separate needs and experiences of her children, or to discriminate her fears from their fears."
As to the Defendant, the court noted:
". . . he lacks insight into complexity or subtlety in others, or into his own impact on others. His tendency towards confident and forceful expression of his expectations and towards increasing that forcefulness when his expectations are thwarted is not intended as threatening, and he has no insight into the possibility of it being so interpreted by others . . . He does not appear, however, to appreciate the potential for frightening or overwhelming his children with the intensity of his feelings and energies, or the need for adapting his behaviors and expectations to their developmental, and emotional needs."
Tellingly, Judge Leheny noted Dr. Phillips's prognosis. She wrote, "She (Phillips) was pessimistic with regard to the ability of the parents to work together or the possibility that stability would occur in the situation 'any time soon.' " From this court's review, this prognosis has proven accurate.
The court awarded the Defendant sole legal and residential custody of the children. Despite this, the court required that a nanny be present at all times the children are with the Defendant. Further, the nanny was to be responsible for all grooming and hygiene of the minor children.
The Plaintiff was awarded an access schedule to include alternate weekends and one evening during the week from 5:00 p.m.-7:00 p.m.
Additional pertinent sections of the court's May 1, 2003 order are as follows:
Sec. 2C. The mother's visitation rights shall be paramount to any plans the father may desire to make that might infringe on such rights . . .
Sec. 3A. The father shall have the obligation and responsibility to consult and discuss with the mother major decisions affecting each minor child's best interests. The term "major decision(s)" is defined as those decisions concerning academic and religious education, residency, selection of camps, participation in activities that require parental permission because of risk of injury and other similar issues, and/or mental, emotional and psychological health of the child that typically involve third parties, including, but not limited to, doctors, dentists, teachers, therapists and counselors.
Sec. 6. The father shall keep the mother informed of the progress of the children's educational development, their vocational and recreational interests, the condition of their health, and other similar matters. The mother shall have the same access to the children's school and medical records as the father and, if necessary, to ensure such access, the father shall, upon request by the mother, provide such written notice to the children's schools or health professionals as is necessary.
Sec. 7C. The child(ren) shall engage in therapy for so long as deemed necessary by the therapist(s).
Sec. 7D. Both parents shall cooperate with the recommendation of the therapist(s).
Sec. 8. Both parties shall engage in counseling. The primary goal of such counseling should be to enable the parties to communicate effectively with each other on matters concerning the children. An additional goal of Butler's therapy should be to gain insight into his impact on others, especially his children, so as to adapt to their developmental and emotional needs. The parties shall continue in counseling until the therapists deem counseling is no longer necessary.
The Plaintiff appealed the decision and the Defendant cross-appealed. The Defendant ultimately withdrew his cross-appeal and the Supreme Court affirmed the trial court's decision. Butler v. Butler, 271 Conn. 657, 859 A.2d 26 (2004).
CURRENT FINDINGS
The parties have continued to engage litigiously since the court's order of May 2003. Although the minor children's residence changed in May of 2003, presumably in an effort to normalize life for the minor children, the parties continue to engage in spiteful behavior between themselves, which is of no benefit to the minor children. Each continues to blame the other for the current state of affairs.
From the moment of the actual custodial transfer of the minor children from Plaintiff to Defendant, the minor children have been subjected to their parents' dysfunctional interaction in both subtle and overt forms. The dysfunction persists and Alexa and Morgan continue to pay the price. The most recent example of their dysfunction, that was brought to the court's attention, occurred in September 2006. The Defendant was going to be refereeing a soccer match in Ridgefield and offered the Plaintiff extra time with Morgan, an admirable gesture. The parties met at a school parking lot at 4:00 p.m. for the exchange. The plan was for Plaintiff to return Morgan to the same location by 5:45 p.m. for Defendant to pick her up. The Plaintiff claims she and Morgan returned to the location ahead of time and watched the end of a soccer match. Morgan saw her father, approached him yelling, "Daddy, Daddy," and Plaintiff left. Defendant claims he waited at the designated location until 6:00 p.m., but never saw Morgan. What is beyond dispute is that someone found Morgan wandering alone at the designated location and gave her a ride to Plaintiff's house. A simple task that any two adults, married, divorced, single or separated should have accomplished with ease, turned into a terrifying experience for a young child. Morgan, literally lost in the shuffle, paid the price for her parents' inability to communicate on even the most basic level.
The Plaintiff has been a resident of Ridgefield since March 2005. She currently works as a "personal chef" for a gentleman in Wilton, Connecticut. In addition to a weekly wage, the Plaintiff's employer also provides her with an automobile. The Plaintiff generally works Monday through Thursday from 2:30 p.m. to 7:00 p.m. The Plaintiff testified that her hours "depend," and that her employer is ". . . very flexible" when she has the minor children. This testimony would appear to be at odds with the fact that the Plaintiff has ceased exercising mid-week visitation with the children because of her work.
Consistent with the Defendant's testimony, the Plaintiff testified that she sees the children every other weekend from Friday to Sunday evening, except during the Fall and Spring soccer seasons, when the Plaintiff has time with the children every other weekend from Saturday after soccer until drop-off at school on Monday morning. The Plaintiff is not supportive of or interested in the children's soccer activities, thus the modified seasonal schedule. To justify her absence, the Plaintiff claims that Morgan has no interest in the sport and Alexa's interest is not the "be all, end all." The Plaintiff's justification is weak and it is unfortunate that she doesn't take a greater interest in the children's athletic activities.
The Plaintiff claims the Defendant prevents her access to the children's school and schoolwork. The evidence supports her claim. The Defendant listed only himself as a parent on Morgan's school registration form, leaving blank that portion of the form where Plaintiff's information should have been provided. He submitted to the school a copy of the May 2003 Judgment and used the same as a tool to marginalize the Plaintiff at school. Dr. Salatto, the minor children's school principal, testified that the Defendant faxed the school "regularly" with instructions. He hoards the notices and announcements from school, the children's paperwork and homework, and the "Friday folder." While the court would have to agree that the Defendant has taken steps to make the Plaintiff appear non-existent to the school and has prevented her review of the children's paperwork, the Plaintiff is not proactive in asserting herself in the children's school community. It would appear from the evidence that some school information is available to any parent through the school website. To merely blame the Defendant, arguably a self-annointed gatekeeper, for her lack of involvement in the children's school is misplaced and demonstrates Plaintiff's inability to either assert herself or be resourceful.
Further, the Plaintiff's failure to involve herself in the minor children's extracurricular activities is disconcerting. The Defendant has done well to involve the children in community activities, including ballet and theater. Although there is nothing that could or should prevent Plaintiff's participation in such activities, the Plaintiff has failed to do the same. Moreover, the Plaintiff would appear to be dismissive of many of the children's activities. It was surely an egregious error of judgment that Plaintiff failed to get Alexa to her theatrical performances in 2005, which no excuse can justify. The only person to suffer by Plaintiff's failure was, unfortunately, Alexa. The Defendant's frustration relative to this occurrence is understandable.
The Plaintiff and Defendant each have two weeks of vacation time with the children every summer. The record is clear that Plaintiff's two-week vacation is subservient to the Defendant's summer plans. Essentially, the Defendant first dictates the terms of his summer plans, and leaves the Plaintiff to make arrangements with what remains. Further, the parties' e-mails and testimony would indicate that the Defendant neither involves nor consults the Plaintiff relative to the minor children's "camp selection," as is required by the Judgment of May 2003. The Defendant also manipulates the court's orders to justify having the children out of the country for 25 days plus, and away from the Plaintiff for almost 30 days. The Defendant complains that the Plaintiff takes him to court each summer to prevent his trip abroad with the minor children. A review of the Butler court file, its size nauseating, would not support the same. The Plaintiff objects to the extent of the children's absence during Defendant's summer holiday, not the vacation in and of itself. Her objections have not been unreasonable.
In compliance with the May 2003 order, the Plaintiff engaged in counseling. She was a patient of Susan Davies for eighteen months, at which time she was discharged. Aside from the Defendant responding, "yes" to the question whether he had engaged in counseling, there was no evidence presented that the Defendant complied with the same order requiring him to undergo therapy. The court's order of May 2003 was very specific as to the Defendant. The court not only required the Defendant to submit to therapy, but required that the therapy focus on the Defendant's need to "gain insight into his impact on others." No evidence addressed compliance with this order. Actually, the evidence would support that either the Defendant did not comply at all, or if he did engage in the therapy as directed, it was not successful.
The Plaintiff, in support of her motion for modification of custody, advances three reasons that she alleges demonstrate a "substantial" change in circumstances.
The first reason is that the Defendant wants to relocate to England.
The second reason is that the Plaintiff has "disengaged from that horror," referring to the "incredibly ugly language" she used toward the Defendant. She admitted to making "mistakes in the past" and losing her "cool." She further testified that she fears ". . . Alexa and Morgan have paid for my mistakes." Reviewing the record, it would appear that the disturbing rhetoric of the Plaintiff's e-mails, such as Defendant's Exhibits QQ and RR, have significantly mellowed over the past year or two. The Plaintiff actually appears to be passive, almost to the point of being ineffective, when it comes to attempting to co-parent with the Defendant.
Finally, the Plaintiff testified that the minor children miss her now "more than ever." Morgan has consistently expressed to the Plaintiff that she wants to live with her. The record, overall, supports this position. Alexa disclosed to the Plaintiff, as well as others, that the Defendant told her if she moved to England, she would see the Plaintiff more. The Defendant himself essentially testified to the same, a facile presentation of the technical facts, without a corresponding explanation of their implications (that Alexa and Morgan would likely spend weeks or months without seeing their mother at all under this plan) in an effort to win the acquiescence of his older daughter. Alexa has been managed by the Defendant.
The Defendant is 45 years old, well educated and a forcefully articulate man. He resides in Woodbury, Connecticut. He is a British national. The court would also note that Alexa was born in England. Even before his marriage to the Plaintiff in 1995, the Defendant had worked and resided in the United States, having won a "green card" in the lottery in 1986. His father, who died in 2004, was a member of the House of Lords of the British Parliament. The Defendant, therefore, is a Peer of the Realm, as are his children. The Defendant testified that the "class structure" in England has "diminished" in the last twenty years, but there is still "some cachet" associated with his heritage. When asked whether there is any direct benefit to the minor children, Defendant testified, "not directly," but one "would look at an application of a Peer of the Realm more favorably."
The Defendant has been the minor children's day-to-day care provider since July 2003. He is dutiful in his responsibilities to the minor children and has done a good job tending to their educational and athletic needs. All his friends testified that they have witnessed a significant change in the Defendant since he assumed custody of the minor children. He has taken on the task of full-time parent with great vigor.
The Defendant seeks to leave the United States with the minor children, to live in England. He advances four reasons for such relocation. They are as follows:
1) His re-marriage to a British national;
2) To relieve himself of this litigation;
3) No "support system" here in the United States; and
4) His work has suffered.
As to his re-marriage, the Defendant met Fenella Fawcus (hereinafter referred to as "Fawcus"), a British subject, in the Spring of 2005. Fawcus resides at Trowbridge, England. She is employed as a buyer in a family business that wholesales garments, 65% of which are school uniforms. The business is located in Trowbridge, five or six miles away from Fawcus' home. She generally works Monday to Friday, from 9:00 a.m. to 5:30 p.m. The position requires her to travel internationally three weeks out of the year.
The Defendant and Fawcus met in March 2005 at a dinner party in London, at the home of mutual friends, Jeremy and Kate Williams. Fawcus testified that she found the Defendant "very interesting," but he "lives in the United States." The Defendant returned to the United States and thereafter kept in touch with Fawcus, via computer. The Defendant returned to England in July of 2005 and attended Fawcus's birthday party. The same month, Fawcus traveled to the United States to meet with a friend in New York City. Fawcus's plans became derailed and the Defendant picked up Fawcus in New York City and returned with her to his home in Woodbury. It was at this time that Fawcus met the minor children for the first time. Fawcus thereafter flew back to England with the children and at the airport met Defendant's mother, Gillian, Lady Howard de Walden (hereinafter referred to as "Lady Howard de Walden"), for the first time.
The parties' relationship has continued since then, although the Defendant has maintained residence in the United States and Fawcus in England. There have been several transatlantic visits. The parties were originally engaged to be married in April of 2006. On counsel's advice, the ceremony was postponed to December 30, 2006. Presumably, as of the date of this decision, the Defendant and Fawcus are married.
The second reason for the Defendant's request to relocate with the minor children is to remove himself from this litigation. The Defendant testified that the last "six years" have been difficult. He feels as if he has to "live inside a courtroom." He described it as "debilitating" and testified that "the kids shouldn't be brought up that way." The Defendant is hopeful that by removing himself and the children from the United States, there will be less negative interaction between him and the Plaintiff.
As to his third reason to relocate with the minor children, the Defendant testified that he has no "support system" in the United States. Given the Defendant's testimony, when the Defendant speaks of "support system" he speaks of the proximity of his family members and close friends. No one from Defendant's family resides in the United States, let alone the State of Connecticut. The Defendant has one brother, who lives in Vancouver, B.C., Canada. It does not appear that the Defendant has much of a relationship with him. His brother has one child, the minor children's only cousin on the Defendant's side, an "illegitimate" child, as described by the Defendant, whom he barely acknowledged. The Defendant has one sister, who until very recently was traveling internationally. She has now returned to England. The Defendant and minor children would appear to have had very little interaction with her, although the Defendant testified that should change given her recent relocation to England. The Defendant's mother, Lady Howard de Walden, lives in England, approximately one hour west of London. The Defendant and minor children share a close relationship with Lady Howard de Walden.
Other than family, the children would appear to be annual guests of the Williams family, friends of the Defendant. The Williams's reside in London. Over the past three or four summers, the children have spent at least one week with the Williams's and their children, three girls of similar age, in France. Additionally, since 2003 the Williams family has seen the minor children at the Easter and Christmas holidays. It would appear the Williams family shares a close relationship with the Defendant and his family.
The Defendant advances that friends and family in England would make themselves available to assist him with the minor children. He complains that he has had difficulty managing the minor children and work, without a "support system" in Connecticut. This is curious to the court, since the Defendant is required by court order to have a nanny present from after school until 8:30 p.m., Monday through Friday. One would think this a sufficient aid to the Defendant in carrying on the tasks of daily parenting. It is further curious to this court, given the Defendant's obvious resourcefulness, that he has failed to establish community friendships or relationships that would be available to him in times of need.
The Defendant also seeks relocation for work reasons. The Defendant testified that his work has suffered and that he is also unable to manage a "substantial amount of farmland" in Northern England while here in the United States.
As for his employment, the Defendant, along with a partner named Anthony Kaye, are owners of a business referred to by the Defendant as "Nu Skin." The details of the Defendant's employment, or possibly lack thereof, were exceedingly vague. The Defendant's business is an "independent franchise," which engages in "direct sales" of "nutritional supplements and skin care products." The Defendant testified that he oversees a number of distributors around the world, the names and locations of all a mystery to the court. He primarily markets to the "medical community." Although the "head office" is in Utah, the Defendant testified that his business has "shifted to Europe," where "80% of the business is." He testified that living in the London area would be more "ideal."
For more than the past two years the Defendant and Mr. Kaye have been involved in some sort of civil litigation in the State of Utah, the details of which were also exceedingly vague. Mr. Kaye is the plaintiff and the Defendant is a named party defendant. The Defendant's "income has been frozen" for the last two years by judicial decree. On his financial affidavit, the Defendant discloses $58.00 per week income from "his business." The court has no idea whether this $58.00 per week is his total income from Nu Skin, his unfrozen portion or his frozen portion. The status of the litigation and the sum of frozen income were not made apparent. When asked how much money is being held, the Defendant responded, "I don't have a figure on that." Besides Defendant's vague testimony, no other testimony or documents were admitted at trial to support the Defendant's position that in England, "Nu Skin" would prove to be more profitable. The record is also devoid of any evidence of Defendant's efforts at making Nu Skin successful here in the United States.
The Defendant has two additional sources of income. One source is "The Bradford Trust," which currently generates $1,154.00 (net) per week, as indicated on Defendant's financial affidavit. This income is apparently derived from the proceeds of tenement farmland in Northern England. Apparently, the Defendant assumed control of this land upon his father's death in 2004, although the Defendant neither testified to nor offered evidence of any responsibilities he assumed or what the position actually entails. The trust has two trustees whose identities are unknown to the court, and there is a land agent, also unknown to the court. Except for the income depicted on Defendant's financial affidavit, there was no evidence presented, insignificant or otherwise, relative to this trust, such as income, expenses, management fees, trust agreements, contracts with tenants, number of tenants, terms,, business plan, etc. The history of income from the trust, presumably previously managed by the Defendant's father who lived in England, was not made available to the court. Thus, there was no context from which the court could discern whether the trust income has decreased over the last two years since the Defendant assumed control, and presumably managed the property from the United States. Neither was there any evidence offered by Defendant relative to any anticipated increase in income as a result of living in England. The Defendant is merely of the opinion that if he is in England, the land will generate more income.
The Defendant's third source of income is the "Butler Trust," which is described as "the children's trust." This trust currently generates approximately $50,000 per year for the benefit of the children. The Defendant testified that it is up to "the trustee who receives the money." It is also up to the trustee how much money is paid annually. Again, the details of this trust were rather vague, as were the details of how the Defendant's presence in England would improve its earnings and income.
The Defendant was asked on more than one occasion what he would do if his motion to relocate to England were denied. Although the Defendant responded, he never really answered the question. This court cannot and will not speculate as to the Defendant's unspoken intentions.
This court has considerable concern relative to the Defendant's posture toward the Plaintiff. Granted, some of the Plaintiff's e-mail correspondence with the Defendant is odd, at best, and while certainly her forgoing weeknight visitation and participation in the girls' soccer is offensive, the Defendant's extreme level of disdain for the Plaintiff is worrisome. The Defendant places little value on the Plaintiff's role in the minor children's life. It would appear that the Defendant considers the Plaintiff to be a nuisance that he is sanctioned to deal with.
The Defendant's pursuit of leading the minor children toward a "four member traditional family," as he described, by virtue of his re-marriage to Fawcus and relocation to England, is not only at odds with reality, it is also a testament to the inconsequential position Defendant perceives the Plaintiff to hold in the lives of the minor children. Any hope of Alexa and Morgan having a "traditional family" was dashed when the Plaintiff and Defendant dissolved their marriage on December 6, 2000. The argument that the Defendant's plans will bestow upon them a "traditional family," completely ignores the fact that the girls' parents live in separate households and always will and that their life is now one of negotiating between the two households, and their two parents, with as little stress as possible. The Plaintiff and Defendant have stood completely in the way of their minor children having an easy transition between the two homes. Their animosity toward each other has made Alexa's and Morgan's post-dissolution lifestyle unnecessarily complex and understandably stressful.
The court also finds of concern the fact that every professional involved in this case, except those hired by the Defendant, has found the Defendant to be verbally abusive and offensive. The testimony of the professionals was compelling, given its consistency when describing the Defendant's behavior. They all noted that the Defendant does not do a good job of insulating the minor children from the conflict between the Plaintiff and Defendant. All professionals who were asked, oppose the Defendant's request to relocate to England with the minor children. Most got the impression that the Defendant's desire for relocation is not just because of his re-marriage to Fawcus, but also because he wants to escape both the court system here in the United States, as well as the Plaintiff. He is hopeful that any litigation in England, post-relocation, would result in the Plaintiff's incarceration in England.
At the time of the last court order in May of 2003, Alexa was 6 years old and Morgan was 4 years old. They changed their residence from Plaintiff's home in New Canaan to Defendant's home in Woodbury in July 2003. There was evidence to support the fact that the transfer was not well orchestrated, for which both parties are to blame. Since that time, the minor children have primarily resided with the Defendant and have visited with the Plaintiff every other weekend and one night during the week. Without court intervention, the parties modified the Plaintiff's access schedule in two ways. First, during the minor children's soccer season, the Plaintiff picks up the children every other Saturday after soccer and returns them to school on Monday morning. Second, the Plaintiff no longer exercises visitation during the week because of her current employment situation. The Plaintiff's failure to avail herself of her allotted parenting time with the minor children for purely personal reasons is troubling to the Court. Further, the record would support the fact that the minor children yearn for additional time with the Plaintiff.
Both minor children have been enrolled in the Woodbury public school system since the fall of 2003. The Defendant has engaged and integrated the minor children into various community activities that span sports to the arts. He is active in and supportive of their school and extracurricular activities. His decisions in this regard have been appropriate and positive for the minor children. There is no dispute that the minor children have done well in school, sports and other extracurricular activities, although this court would note that the girls' school attendance and tardiness for school year 2005/06 and the first semester of 2006/07 were excessive during the Defendant's custodial time. The early dismissals were to accommodate the Defendant's needs or schedule. In this school year 2006/07, during the first semester alone, Morgan had 10 early dismissals and Alexa had 9. The Defendant would excuse the situation on the absence of a nanny or lack of a "support system." This court finds such excuses weak.
Despite the order of May 2003 that the children engage in therapy until the therapist determines it unnecessary, the children are not currently engaged in therapy. Thus, this court did not have the benefit of a current, unbiased assessment of the children's mental health status.
The history of the minor children's therapy is of concern to the court. Consistent with the court order of May 2003, the Defendant engaged the children with a therapist, Julie Sowell (hereinafter referred to as "Sowell"). The evidence would support that the Defendant unilaterally selected Sowell, despite the court's order of May 2003 that the minor children's Guardian Ad Litem, Attorney Susan Snearly (hereinafter referred to as "Snearly"), consult with the Defendant relative to a list of therapists supplied by Dr. Anne Phillips, the previously court-appointed psychological evaluator. The court finds it startling that the Defendant's first significant act as the minor children's custodian was in dereliction of a court order issued only months before.
The minor children saw Sowell, on average, semi-monthly from July 22, 2003 to October 21, 2005. Sowell saw Alexa for a year prior to engaging Morgan in September 2004.
In a letter dated October 25, 2005, Sowell informed Defendant's attorney that it was her recommendation that the minor children attend weekly therapy sessions. Despite this recommendation, the Defendant, shortly thereafter and rather abruptly, ceased the minor children's therapy with Sowell, again an act contrary to the court's order. In an effort to justify his behavior, the Defendant testified that the location of Sowell's office (Waterbury) was inconvenient. It would also appear that the Defendant was not satisfied with the amount of information Sowell was willing to share with him. In a facsimile transmission dated November 16, 2005, the Defendant wrote to Sowell, "I have decided for a variety of reasons to change the children's therapy sessions to a local therapist here in Woodbury." There was no evidence that the Defendant consulted with the Plaintiff relative to discontinuing the children's therapy with Sowell, or with the selection of a new therapist, as he was required to do pursuant to the existing court order.
Sowell was called to testify at trial. The court finds Sowell's testimony to be truthful. The court would note that Sowell was very apprehensive to testify. Her apprehension was due in large part to having been told that she would never have to disclose what was discussed in therapy with the minor children. Further, she was apprehensive because, as she testified, the Defendant "can be very intimidating." Sowell was clearly uncomfortable during her testimony and it appeared that the Defendant was equally agitated by Sowell's courtroom presence and testimony. At one point during her testimony, Sowell broke down and started to cry. She stated, "The (Defendant) is throwing daggers at me." The court notes the Defendant's conduct during Sowell's testimony was, at the very least, distracting to the court, and at worst, intimidating to the witness.
Sowell testified that she observed Alexa to be "sad and depressed." Further, it is Sowell's opinion that Alexa has taken on a "sense of guilt" because of her parents' divorce. Alexa believes she "talked to the wrong people" and that this is the reason she is currently living with the Defendant. Sowell testified that it took a long time, almost one year, "to gain Alexa's trust." Sowell testified that Alexa had a difficult time with her appearance, relative to her nose and weight. Apparently, she had been teased at school. Sowell testified that Alexa has a tendency to "mask" her feelings. Concerned that the Defendant, in the adjoining waiting room, might hear what she said to Sowell, Alexa often whispered or lowered her voice during therapy.
Sowell observed Morgan to be an animated and angry child. Morgan had an issue with controlling her bowels and Sowell testified that on several occasions Morgan left the office ". . . with the john completely a mess." Sowell found Morgan to be "very clear in her wants and beliefs." Morgan was consistent in her desire to live with the Plaintiff. On many occasions, Morgan told Sowell she hated the Defendant and wished him dead, so that she could then live with the Plaintiff. Although both girls consistently told Sowell they want to spend more time with the Plaintiff, Morgan spoke of it "all the time."
Sowell testified that the Defendant was "intimidating" at times and made demands for her attention. Although the Defendant was not Sowell's patient, he sought her professional advice. The Defendant's personal demands on Sowell challenged and compromised the minor children's therapy with Sowell. Sowell testified that the Defendant lost his temper with her on a few occasions. She specifically recalled a phone conversation where the Defendant screamed at her for 40-45 minutes. The Defendant was often very critical, telling Sowell that she didn't know what she was talking about, that the courts don't know what they are doing and that "Americans are crazy." Further, Sowell noted that the Defendant was critical of the Plaintiff, at times in front of the minor children. He referred to the Plaintiff as "unfit," "crazy," and said she was not interested in therapy for the children. Sowell found the Defendant's behavior concerning and surmised she might be witnessing "what it is like at home" for the children.
Sowell testified that the Defendant never believed the minor children needed therapy. As therapy continued, the Defendant became more and more agitated. The Defendant made Sowell "nervous" and "uncomfortable," so much so that she brought mace with her to the office and kept it by her side.
It was exceedingly clear to the court that the Defendant has great disdain for Sowell, for no other reason than her professional opinion is at odds with his personal views. The Defendant's courtroom demeanor toward Sowell was in stark contrast to his demeanor toward Mr. Pavlick and Ms. Pensiero, the two therapists Defendant hired, on his own, to evaluate the minor children. Sowell received Defendant's glares, smirks and hurrumphs. Mr. Pavlick was met by the Defendant with a smile, a handshake and a pat on the shoulder. At one point when Sowell was on the witness stand, the court clearly heard the Defendant's counsel tell him to "relax" as he grew more and more agitated by her testimony. Although this court can understand the Defendant's frustration with the therapeutic process, he manipulated it so that it ceased, for his own peace of mind and convenience, without regard to the needs of the children.
David Pavlick, LCSW (hereinafter referred to as "Pavlick"), a therapist hired by the Defendant, was called to testify. Pavlick was a member of a business group of which the Defendant was also a member. Pavlick was first contacted by the Defendant in September 2005. The Defendant informed Pavtick that he didn't believe the minor children needed to be in therapy and gave Pavlick his reasons why. The Defendant asked Pavlick to evaluate the children to determine the need for additional therapy. Pavlick thought it best to see only one child, and referred the other child to a member of his practice group, Jennifer Pensiero.
Pavlick saw Alexa on five separate occasions. He found her "bright" and "energetic." She seemed "relaxed," "comfortable" and had a "good sense of self." In a letter "to whom it may concern" dated December 28, 2005, Pavlick concludes, "Alexa shows no signs of overt pathology or aberrant behavior. Given that her father reports no unusual or aberrant behavior and that her school performance is commensurate with her abilities, I see no reason to recommend therapy at this time."
Jennifer Pensiero, LMFT (hereinafter referred to as "Pensiero"), also met with the Defendant. The Defendant informed Pensiero as well that he didn't believe Morgan needed further counseling and desired Pensiero to evaluate this issue. Pensiero met with Morgan on two occasions. She found Morgan to be "happy go lucky" and "carefree." Morgan did express sadness relative to missing the Plaintiff. She drew a heart that was "sad" because she sees Plaintiff only two times a week.
Pensiero also penned a letter "to whom it may concern" dated December 28, 2005. In it, Pensiero concludes, "At this time, Miss Butler does not present the need for treatment. It is clear she is adjusting to the separation between the parents but she does not present any unhealthy behaviors or interference in her overall functioning."
Although this court has no reason to believe that Pavlick and Pensiero were anything but truthful, their opinions are less than reliable. It would appear to this court that the Defendant manipulated the minor children's therapeutic process by unilaterally, and against advice, terminating the children's therapy with Sowell and then replacing her with a therapist who is in a business group with Defendant. Further, the Defendant approached both new therapists with his position that the minor children no longer needed therapy. Observing the Defendant over the course of eleven days of trial, this court has no doubt that the Defendant expressed his opinion in a forceful and convincing manner. Despite the fact that both Pavlick and Pensiero were provided with a release for Sowell, neither pursued the same and thus did not have the benefit of Sowell's two years of observations. Further, the Plaintiff was completely excluded from all transitions in the therapeutic process. It is clear to the court that the Defendant places very little value on therapy, which this court is not concerned with, so long as his personal perspective does not interfere with that which his children may need. It would appear that the Defendant blurred the lines between what he could tolerate personally and what would be in the minor children's best interests.
Noel Breg (hereinafter referred to as "Breg"), Family Relations Counselor, performed a court-ordered custody evaluation. Her report was admitted as Plaintiff's Exhibit 19. Breg testified extensively at trial. The issues for Breg's consideration were the Plaintiff's request for joint custody and primary residence of the minor children and the Defendant's request to relocate to England with the minor children.
Breg testified as to her findings. She found that the parents did not "get along very well" and their communication was "very bad." She further found "serious problems" with the Defendant being an "international business man." The Defendant told Breg that 85% of his business was international and 15% of his business was national. Breg found that the Defendant's business activities and personal activities left little time to devote to the children. Further, Breg found that the Defendant not only believes the Plaintiff is an "unfit" mother, but that Judge Leheny had found her to be unfit as well, a conclusion the record does not support. Breg found the Defendant to be far more contentious and disdainful of the Plaintiff, than the Plaintiff is of him.
As part of the protocol, Breg visited both the Plaintiff and Defendant's homes. Her first visit was to the Defendant's home, Breg arrived at approximately 4:00 p.m. in the afternoon and stayed until just after 5:00 p.m. She observed the girls to be enjoying themselves. They were bouncing a ball around the house. The Defendant was trying to get the children to focus on homework because they had an activity outside the home later on that day. Breg had only had a small amount of time to spend with each girl alone. Breg testified, "It was busy there," referring to the atmosphere at Defendant's home. Further, she stated that, "there was too much time pressure." She felt as if she were "imposing" on them. Despite this, Breg noted the girls interacted with the Defendant well. She testified, "The girls are obviously fond of their father."
As to Breg's visit to the Plaintiff's home, the children and Plaintiff arrived late. The Plaintiff, only after Defendant arranged it and approved it, went to school to pick up the minor children for Breg's home visit. For a reason that was unexplained, the Defendant was also at the school at the time the Plaintiff was there to pick up the children. The Defendant made a demand for the contents of Morgan's backpack. Further, there was an issue whether Plaintiff could go to Morgan's classroom. Both of these issues could have been, and certainly should have been, easily avoided for the sake of the minor children. This court struggles with the necessity of Defendant's presence at school when he knew of, and had pre-approved, the Plaintiff's plan to pick up the children.
Upon the children's arrival at the Plaintiff's, they went to the next-door neighbors' to see if their friends were home. They played on an outdoor swing set. Breg had an opportunity to speak with Alexa alone; she did not with Morgan. Breg found the Plaintiff's home "appropriate." Breg testified that as compared to the Defendant's home, there was not as much activity and it was "quieter." Breg noted in her report, "She [Plaintiff] has a warm and loving relationship with her daughters who obviously enjoy being with her."
As with Sowell, Breg also found the Defendant's behavior challenging. She found him difficult to work with and he was much less cooperative than the Plaintiff. Breg found the Defendant to be avoidant and prone to "start a soliloquy" in response to a question he did not like. She stated, "He chose to do only those certain things that he deemed appropriate."
Upon Breg's first meeting with the Defendant, he provided her with a copy of Pavlick's and Pensiero's reports, referenced above. Breg asked the Defendant to execute a release for Sowell. The Defendant would not agree to sign the release and left the meeting with the unsigned release form. On advice of counsel, he later refused to sign the Sowell release. With months passing and no release forthcoming, Breg brought the issue to the court's attention. Eventually, the Defendant provided an executed Sowell release to Breg.
On other occasions, Breg testified that the Defendant would raise his voice to her. In areas of disagreement, Defendant would get very upset and go into "a diatribe" that would last, sometimes as long as 40 minutes. He was "subject to outbursts of temper when asked questions he does not like or when informed of something that he does not like." Breg described the Defendant as "directorial." At one point, the Defendant informed Breg that she had sufficient information and directed her to start preparing her report. Similar to Sowell's concerns, Breg wrote in her report, "The obvious question is, what are the children exposed to at home when the father feels free to berate a stranger?"
This court noticed that the Defendant was visibly agitated during the course of Breg's testimony. At one point during her testimony, Breg stopped and told this court that the Defendant was distracting her. The court noted that the defendant had a look of disdain towards the witness.
Breg testified that she did not experience the same difficulty with the Plaintiff during the course of her evaluation. Breg found the Plaintiff to be cooperative. Further, Breg could not substantiate any of the Defendant's claims that the Plaintiff was "delusional," "illogical," "a lunatic," or "unfit."
Breg recommends against the Defendant's relocation with the children. Moreover, Breg is of the opinion that it is in the children's best interest for the Plaintiff to have sole legal and residential custody of the minor children.
Breg concludes, "Mr. Butler was quite clear that he wanted to relocate to England to remove himself from the province of the mother and the American court system. He was marrying an Englishwoman whose business is located in England, and his business was primarily located in Europe. He claims that English schools are superior and the children will be better off."
". . . Although this counselor understands the benefit to the father of relocating to England, this counselor can find no benefit to Alexa and Morgan for this move. There has been no evidence put forth to support a belief that out of the country this father would promote and/or maintain the children's relationship with their mother. The father's concept is that the onus of this move and her relationship with the children is on the mother."
Breg further noted in her report, ". . . The court order states that the father shall have sole custody of the minor children but the rest of the order requires considerable shared parenting much like a joint custody order. The father tends to ignore the second part of the order as shown by his preventing the mother from seeing the children's homework and telling the teachers they need written permission to speak with the mother, failing to list her as a parent and contact, and failing to list the mother at the pediatrician's. He has taken the children overseas for longer than his allotted two-week vacation and berates the mother if she files a motion protesting it. He fills his e-mails to the mother with invectives and derisive comments rather than answering the question which is commonly, 'where are you?' The court in its order chastised the mother for interfering with the father's access with the children. It gave sole custody to the father and expected him to do better. The father has done much worse. He trampled on the mother's rights and feels justified doing it because he has sole custody and the mother is 'unfit.' "
"The mother is not 'unfit.' The mother is a caring and nurturing parent who is willing to accept her mistakes and learn by them. She has a warm and loving relationship with her daughters who obviously enjoy being with her. This relationship will be broken if the children relocate to England."
Breg concludes, "This counselor has found that the mother is better able to support the best interests of these children."
Breg recommends, ". . . that the father not be allowed to relocate the children to England. Family Services further recommends that the mother hold sole legal and physical custody of the two minor children and that the father have parenting, time with the children every other weekend from after school Friday through Sunday at 7:00 p.m."
As to counseling, Breg recommends that the children "recommence counseling with a licensed therapist, preferably Ms. Sowell. But if this is not convenient or feasible, then with another licensed therapist who should be encouraged to discuss the children's cases with Ms. Sowell. Therapy should continue at the therapist's discretion."
The court appointed Attorney Bridget Garrity (hereinafter referred to as "Garrity"), on December 14, 2005 as the minor children's Guardian Ad Litem (GAL). Attorney Garrity replaced the former GAL, Snearly. There was an issue during the course of this trial as to the reason for Snearly's departure from this case. It was the Defendant's convinced opinion and testimony that Snearly sought to be relieved of her GAL position because she found the Plaintiff's behavior intolerable. Snearly was called to testify as a rebuttal witness. It is clear to the court that Snearly sought to be relieved from this case, not because of anything the Plaintiff did, but because of the Defendant's behavior towards her. This piece of evidence is compelling to the court because it demonstrates that either the Defendant was dishonest with the court or that the Defendant completely failed to see, not only how his own behavior had an adverse impact upon Snearly, but also how his behavior affected the minor children's representation. Either conclusion is very troubling to the court. Further, the Defendant accused the Plaintiff of adverse behavior, which apparently was not at all evident to Snearly.
Snearly testified that subsequent to the conclusion of the May 2003 trial, wherein she testified that the Plaintiff should maintain custody, the Defendant became "quite hostile" towards her. She testified that the Defendant was "confrontational and abusive," which "impeded" her "ability to resolve issues for the kids." Snearly testified that it was an "impossible situation to deal with Mr. Butler." She found the Defendant "uncooperative," "opinionated," "verbally abusive" and "confrontational." The Defendant's hostile behavior toward Snearly at one appearance at Danbury Superior Court became so overt it drew the attention and intervention of the Judicial Marshals. Further, during the course of Snearly's testimony at this trial, she felt "uncomfortable." She testified that she "won't make eye contact" with the Defendant because he "usually tries to stare me down."
The minor children's current GAL, Garrity, testified last and at length. Her testimony was insightful, comprehensive, consistent with other evidence, and persuasive. Garrity visited both Plaintiff's and Defendant's homes, with the minor children present. She found nothing of concern at either home.
Garrity found that both parents love the children "immensely." Likewise, the girls are equally affectionate with both the Plaintiff and Defendant. She found both parents "cooperative." She further noted as significant, that the Plaintiff had nothing negative to say about Fawcus. Garrity reported that, relative to Fawcus, the Plaintiff was happy that the children had someone in their life who was "kind and loving to them."
Garrity also testified as to: some concerns relative to both Plaintiff and Defendant. Unfortunately, Garrity's list of "negatives" was rather exhaustive. Some of the negatives found by Garrity are as follows:
1. Plaintiff and Defendant wanted her to question the children about selected events;
2. Plaintiff and Defendant could have been more attuned to school events;
3. The girls' school attendance/tardiness was below par;
4. Plaintiff and Defendant have used "abrasive, scathing, bitter, nasty language" to each other;
CT Page 5842
5. Plaintiff and Defendant do not communicate well with each other;
6. Defendant's "negative and abrasive attitude" toward individuals involved in the case;
7. The Defendant was not as vigilant at supervision as he should have been on a few occasions;
8. Garrity believes both children have overheard Plaintiff and Defendant discussing the case, more so with the Defendant than the Plaintiff;
9. Defendant told Garrity that Plaintiff is "evil," "poisonous" and "should be in jail";
10. Defendant provided little information to Garrity relative to the children's school and living arrangements in England;
11. Plaintiff and Defendant each failed to provide Garrity with specific proposed access time for the other in the event either prevails with his/her pending motion;
12. Concern relative to Defendant providing Plaintiff with timely information regarding doctor's appointments and travel;
13. Plaintiff and Defendant avoid the other's questions relative to the minor children;
14. Concern over the Defendant's reasons for changing the children's therapist;
15. Defendant could have been more forthcoming with children's homework and camp selection;
16. Defendant lacked insight into Plaintiff's concern relative to Alexa's solo return flight from Heathrow Airport to JFK Airport in August 2006, two days after an alleged terrorist plot involving bombs on several planes departing Heathrow Airport and bound for JFK Airport;
17. Defendant does not honor Plaintiff's role in the children's lives and believes she is not of equal importance to him;
18. Defendant could have made a better effort to establish a support system in Connecticut;
19. Defendant did not analyze the impact on the children of his decision to marry someone who could not live in the United States;
20. Both Plaintiff and Defendant failed to follow court orders: Plaintiff, as to child support and Defendant, as to nanny requirement;
21. Plaintiff is too passive at getting information relative to the minor children;
22. Plaintiff's lack of participation in the minor children's activities; and
23. Plaintiff's failure to exercise mid-week visitation.
The record amply supports all of Garrity's legitimate concerns and observations.
Garrity found both children to be "bright," "engaging," "happy," and "well-rounded." It was Garrity's impression that the minor children are well aware of their parents' conflict. She finds them resilient, although ". . . on occasion the sadness does get to them." She found them to be "extremely bonded" with their school and all that goes with that community. She found Alexa to be more guarded and "even handed" when it comes to negotiating the territory between her parents. Alexa indicated a willingness to "try" to live in England. Alexa reported that the Defendant told her if she lived in England, she would actually get to see the Plaintiff more. Morgan "misses" her mother and wants to live with her. Garrity testified that it was her impression that the Plaintiff is the "psychological parent" in that the children look to her for "primary guidance and consolation." Further, the minor children appear more emotionally connected to the Plaintiff than the Defendant.
As with Sowell, Breg and Snearly, Garrity too found Defendant's behavior disconcerting. By way of example, Garrity testified that during her home visit, the Defendant became very loud and angry when discussing Family Services. When Garrity questioned the Defendant relative to the Defendant's supervision of the minor children on various Tuesday mornings before school, the Defendant became "very upset and angry" with Garrity for even asking the question. Defendant stated to Garrity that the issue of his absence on Tuesday mornings was a "specious and baseless claim" and more of the Plaintiff's "drivel." Garrity asked the Defendant to provide an affidavit attesting to the fact that the children were not being left alone on Tuesday mornings. Such affidavit was not forthcoming. The court would note additionally, that the Defendant delivered several witnesses from far and wide, but failed to bring in his next door neighbor, whom he testified watched the minor children on Tuesday mornings. Such a simple act would have put this issue to rest. Failure to do so only calls into question Defendant's testimony in this regard.
Given her experience with and observations of the Defendant, Garrity had "mild concern" relative to her home visit with him. Consistent with the other experts' testimony, Garrity was also concerned that the Defendant's demeanor toward professionals could be the same demeanor the Defendant demonstrates in the home for the minor children to witness or endure.
Garrity is opposed to the Defendant's request to relocate. If the court denies the Defendant's request to relocate and the Defendant remains in the United States, it is Garrity's recommendation that there be joint legal and physical custody of the minor children. Garrity recommends that the children's legal residence remain in Woodbury, so they may continue in the Woodbury school system. The Plaintiff and Defendant would share weekend and weekday visitation.
If relocation is denied and the Defendant relocates to England, Garrity recommends that the Plaintiff have sole legal and primary physical custody, with the Defendant having an access schedule that includes a majority of all school vacations and a significant amount of time in the summer.
Both parties called many friends and family members to the stand to testify as to their respective characters and relationships with the minor children. It would appear that the Plaintiff has not had a particularly close relationship with her family, although there appears to be at least an annual visit to Illinois, where Plaintiff's family primarily resides. Likewise, the Defendant does not appear to share a particularly close relationship with his family, with the exception of his mother, Lady Howard de Walden.
Clearly, Lady Howard de Walden is a very supportive mother and grandmother. She sees the minor children three to four times a year for extended periods of time. She otherwise keeps in constant contact with the Defendant. There is no doubt Lady Howard de Walden has been a consistent and willingly available resource for the Defendant and the children when they are in England. The record further supports that the minor children very much enjoy her company and the visits to her home. Lady Howard de Walden would appear to regularly be of assistance to the Defendant by way of watching the girls while he is absent, meeting the girls at the airport, driving them to camp, etc. She is a doting grandmother. She has vowed to provide continued and additional support to the Defendant if he relocates to England with the minor children. She is truly a tremendous asset for the Defendant and the minor children.
The Defendant also has great support from Fawcus, as well as from Fawcus's parents. It is beyond dispute that the girls love Fawcus and she loves them. Further, the evidence would support that Fawcus is and would be a positive influence in the minor children's lives. On rebuttal, Fawcus testified that she is phasing out of her position in the family business, and thus would be more available to assist with the children. Fawcus testified that she respects the Plaintiff's role as mother, and would not seek to interfere with that in the event the minor children reside with her. The court has no reason to doubt Fawcus's intentions. The Defendant and minor children would appear to be quite fortunate to have Fawcus in the family.
LAW
The burden-shifting analysis adopted in 1998 in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), heretofore utilized in cases where a custodial parent sought to relocate with the child, was replaced by our Legislature in 2006 with Public Acts 2006, No. 06-168, now General Statutes § 46b-56d. Section 46b-56d(a) reads:
(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocating parent would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.
The effect of General Statutes § 46b-56d(a) is essentially to codify the tripartite provisions of the Ireland rule, at the same time relieving the party opposing relocation of its former Ireland burden of proving, by a preponderance of the evidence, that despite the moving party's showing that relocation is for a legitimate purpose and is reasonable in light of that purpose, the relocation nevertheless fails to be in the best interests of the child. Section 46b-56d(a) now places squarely on the shoulders of the party advocating relocation the entire burden of demonstrating, by a preponderance of the evidence, not only that the relocation is for a legitimate purpose and is reasonable in light of that purpose, but also that the relocation is affirmatively in the best interests of the child.
General Statutes § 46b-56d(b) further enumerates five specific factors that our courts are now statutorily obligated to consider in determining whether to approve a parent's request to relocate with a child. Section 46b-56d(b) reads:
(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent's reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the nonrelocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.
These factors were first adopted by the Ireland court from the New York Court of Appeals case of Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), under the court's supervisory authority. Under Ireland, each of the Tropea factors is to be considered, although not exclusively, and no single factor is to be presumed to carry dispositive weight. Ireland v. Ireland, supra, 246 Conn. 434. "Moreover, any other factors or circumstances that could have a bearing on the court's determination of the child's best interests should be considered and given the appropriate weight in the court's analysis." Ireland v. Ireland, supra, 435. The ultimate goal in considering these and other factors deemed appropriate by the court is to facilitate an accurate case-by-case determination of whether the relocation proposed by the moving party indeed lies in the best interests of the child. Ireland v. Ireland, supra, 433-34.
Connecticut's law regarding postjudgment modification of custody orders is well settled. General Statutes § 46b-56(a) gives authority for such modification to the trial court, and reads, in part, as follows:
the court may at any time make or modify any proper order regarding . . . custody or visitation if it has jurisdiction . . . according to its best judgment upon the acts of the case and subject to such conditions and limitations as it deems equitable.
The granting of statutory authority to modify custody orders under the above provision is not without limitation. Our Supreme Court has ". . . limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court's finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child . . ." (Citations omitted.) Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996); Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982).
Notwithstanding the limitations placed upon the court's discretion to modify child custody orders, it is clear that, in our State, the overriding interest that must inform the court's judgment is its obligation to craft decisions that are in the best interests of the child. General Statutes § 46b-56(c). "Before a court may modify a custody order, it must find that there has been a material change in circumstances since the prior order of the court, but the ultimate test is the best interests of the child . . ." (emphasis added). Sheiman v. Sheiman, 72 Conn.App. 193, 199, 804 A.2d 983 (2002); Brubeck v. Brubeck, 42 Conn.App. 583, 585, 680 A.2d 327 (1996). "The paramount concern in ordering custody is the best interests of the child." Hall v. Hall, supra, 186 Conn. 121.
In determining the best interests of the child, the courts are aided by the provisions of General Statutes § 46b-56(c), which lists sixteen factors, any or all of which may, in the court's discretion, be used in such determination:
(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers.
The court has also deemed it appropriate to consider the temperament and demeanor of the parties as a factor when deciding the issue of custody modification. In Sheiman the court held that there had been no abuse of discretion in the trial court's conclusion that its findings of fact, which included the court's observations of the Defendant's temperament and demeanor, constituted a material change in circumstances, warranting a change in custody. Sheiman v. Sheiman, supra, 72 Conn.App. 199-200 ". . . the court also recited its observation of the Defendant's demeanor and behavior during the hearing and noted that the Defendant is capable of verbally abusive conduct. He verbally abused the child's counsel on numerous occasions. In the courtroom the Defendant was impolite and discourteous to all. He devoted most of his energy to vilifying the Plaintiff . . ." Sheiman v. Sheiman, supra, 196.
DISCUSSION
As to the Defendant's request to relocate, he bears the burden of proving, by a fair preponderance of the evidence, that there is a "legitimate" purpose for moving the children to England. As set forth above, the Defendant advances four reasons for the move.
The court was not at all persuaded relative to the Defendant's request to relocate because of the persistence of the Butler litigation. Although there is enough blame to go around many times, clearly the current litigious state of affairs between the Plaintiff and Defendant has just as much to do with the Defendant, as it does the Plaintiff. Further, even if the Defendant were an "innocent" in the context of this litigation, taking the children out of the country to avoid further litigation cannot be sustained as a legitimate purpose for relocation.
As to Defendant's claim that he would fare better financially in England, although economic enhancement could be deemed a legitimate reason to relocate, in this case it is not. First, the Defendant is not going to a new position in England with a specific income that demonstrates such economic enhancement. The Defendant is merely hopeful and speculating that he could improve his currently existing business enterprise, based in Utah, by residing in England. Second, the Defendant failed to provide sufficient evidence to support his contention that his earnings would increase by virtue of his residing in England rather than in Connecticut. The Defendant has thus failed to prove by a fair preponderance of the evidence that his and/or the children's lives would be economically enhanced by relocating to England.
The Defendant's next claim that it is legitimate to relocate the minor children to England because he has no support system in Connecticut, is somewhat self-serving and the situation self-created. The presence or absence of a support system for the Defendant in Connecticut is completely within the control and province of the Defendant. Arguably, any parent could self-impose isolation and thereafter complain of a lack of a support system, in an effort to advance the same as a legitimate reason for relocation. The Defendant's "support system," or lack thereof, in Connecticut, is of the Defendant's own creation. Granted, Lady Howard de Walden is a pillar of support for the Defendant, but that fact alone does not make the Defendant's lack of a support system in Connecticut a legitimate reason to relocate the children to England.
The Defendant argues that his re-marriage to Fawcus is a legitimate reason to relocate the children to England. This Court does not agree. Implicit in the Defendant's proposal to marry Fawcus was his conscious, voluntary choice to select his intended wife. The Defendant entered into that relationship fully aware that 1) he shared two children with his ex-wife in the United States; and 2) Fawcus was a British national, and based upon her testimony, precluded from residing in the United States. The Defendant, a bright man, in considering this relationship, should have thought it through to its potential conclusion (i.e., marriage) and how that would affect the children, his status as a custodian and the children's relationship with the Plaintiff. Apparently, he did not. The Defendant failed to appreciate, or chose to ignore, the impact of his decision on the children and their relationship with the Plaintiff. Again, it was a self-created situation, entirely within the Defendant's province and control.
The court has also considered that the Plaintiff opposes the relocation because of its potential negative impact on her relationship with the minor children. The relocation request in this case is unique in that it will require transatlantic travel in order for the children and Plaintiff to maintain any sort of personal contact. The Defendant is somewhat dismissive about the distance, saying that it is easier to get to England than to the western United States. Such a statement clearly fails to appreciate that it is at the very least, cumbersome to travel to either destination. The Defendant, more than anyone, should appreciate the challenge inherent in maintaining an intimate relationship with another from a distance. It is he who seeks to relocate to England to preserve his relationship with Fawcus. Moreover, it would be impossible to maintain any sort of meaningful, regular continuity in the relationship between the Plaintiff and the minor children given the physical distance between Connecticut and England. Telephone contact cannot replace all the fullness of the in-person relationship currently shared by the Plaintiff and the minor children. The evidence is clear that the Plaintiff and the minor children have a close and rich bond. Putting an ocean between them will have a devastating impact upon that relationship. The Plaintiff's opposition to the Defendant's bid to relocate the minor children to England is legitimate, reasonable and well founded.
The Defendant's proposed orders relative to the Plaintiff's access to the children provide for extended periods of absence between the Plaintiff and the minor children. Even if the court were to agree that the "quantity" of the time Plaintiff and the minor children would spend together in any given year would be more than the Plaintiff currently has, the quality of the relationship would be significantly compromised by the necessity of prolonged absences.
Assuming, arguendo, that any one of the reasons advanced by the Defendant for relocating the minor children were found legitimate, relocation to England is not reasonable in light of such purpose. In cases such as this, outcomes change significantly based upon the facts. If Fawcus were from Massachusetts and the Defendant proposed relocation to Boston, such context could potentially change the outcome. If the Defendant were hired by a firm from New York City and could demonstrate economic enhancement, his request for relocation might be viewed differently. In this case, the Defendant, in his bid to relocate, proposes putting an ocean between the Plaintiff and the minor children, based on his re-marriage and hope of enhanced income. His purposes to relocate, relative to the minor children, are weak and the destination too far. It would be the minor children who would bear the burden of several annual solo transatlantic flights, in order to maintain their relationship with the Plaintiff, for the benefit of the Defendants re-marriage and his hope of enhanced economic wealth. This is a burden they and their relationship with the Plaintiff, should not be made to bear. Relocating to England is clearly not reasonable in light of such purpose.
Finally, even if the court were to find that the Defendant's request to relocate the minor children to England was for a legitimate purpose and that England was a reasonable location in light of such purpose, P.A. 06-168 § 1(c) requires that the Defendant prove by a fair preponderance of the evidence that the relocation is in the best interests of the children. The Defendant has failed to meet this burden. This court does not believe relocating the children to England would be in their best interests, for the reasons discussed below.
First and foremost, the relocation would have a negative impact on the Plaintiff's relationship with the minor children, as discussed above. Breg stated, "Although this counselor understands the benefit to the father relocating to England, this counselor can find no benefit to Alexa and Morgan for this move." This court agrees. Although the girls would benefit from being able to visit with Lady Howard de Walden more regularly and from spending time with Fawcus, the other benefits are speculative, at best, and in and of themselves do not overcome the negative impact the relocation would have on the minor children's relationship with the Plaintiff. The Defendant speaks vaguely of superior school systems in England and of an enhanced economic future, which are afterthoughts for his real motivation, that being his re-marriage and escape from the Plaintiff and court system.
The Defendant has used his custodial position to marginalize the Plaintiff in the children's lives while living in the same State. With their residences on separate continents, the Plaintiff's status would be relegated to nothing more than a visitor. The Defendant was awarded sole custody in 2003 as a shield to insulate the children from Plaintiff's previous adverse behavior. Instead of providing a shield, the Defendant has used sole custody as a sword against the Plaintiff wherever possible, this effort to relocate being his attempt at a final severance.
Additionally, aside from the Plaintiff and Defendant's various arguments for and against their positions, Morgan clearly expresses a preference to reside with the Plaintiff. One can only surmise what Alexa's preference would be if she actually understood the implications of Defendant's proposed orders, rather than merely being told she would see the Plaintiff more if she lived in England, without the corresponding and very important information that she would go weeks, if not months, without seeing her mother.
To summarize, the court finds none of the Defendant's reasons for relocation to be legitimate. Further, even if deemed legitimate, relocation to England is not reasonable and clearly not in the children's best interests.
As to her motion to modify custody, postjudgment, the Plaintiff bears the burden of proving a "substantial change in circumstances" since the May 2003 judgment and/or that it is in the best interests of the minor children to modify the May 2003 custody order.
Although there have been changes since May 2003, what has not changed is the dysfunctional relationship between the Plaintiff and the Defendant. Even with the 2003 custodial change, their animosity toward one another remains the same, if not worse.
The Plaintiff claims she has disengaged from the ugly exchanges of the past. Recent history supports this claim. The Defendant, on the other hand, would appear to struggle with anything approaching composure when it comes to the Plaintiff. By way of just one recent example, on March 28, 2006 in response to the Plaintiff asking for Defendant's contact numbers while in England with the minor children, Defendant responds, "I have already given you the number but instead of reading my e-mails you are too busy spending money you say you do not have by trying (as every year) to spoil the children's summer activities and holidays and cause the usual mayhem and havoc for everyone concerned. We all see through your shallow, selfish and despicable behavior. It is about time you were sent to jail to reflect on your actions of the past six years. The number at Avington is [phone number omitted]."
In May 2003, the court found the Defendant would provide, ". . . a calmer and more stable environment for the children and more structure and discipline." Although there is no doubt that the Defendant has attended adequately to the minor children's educational, athletic and social needs, he would not appear to be successful at providing a calm and stable environment for the minor children. He speaks poorly of the Plaintiff in front of the children; he speaks aggressively to professionals in front of the minor children; he has absented the professionals whose involvement was of benefit to the children; there were incidents of supervision lapses; talking about the litigation with, or in front of, the children; terminating the children's therapist, bringing them to different therapists and then ending that therapy as well; he has systematically and consciously gutted significant portions of the May 2003 order.
Further, in May 2003 the court found, ". . . Defendant is less likely than Plaintiff has been to interfere with the children's relationship with her. His anger at her is not being expressed through the children."
The same cannot be found true today.
This court finds the Defendant has interfered with the children's relationship with the Plaintiff and further, he expresses extreme anger toward the Plaintiff. Although the Plaintiff is not without fault, she has significantly tempered her posture toward the Defendant. The Defendant has failed to do the same. Breg stated aptly in her report, "It [the court, Leheny, J.] gave sole custody to the father and expected him to do better. The father has done much worse. He trampled on the mother's rights and feels justified doing it because he has sole custody and the mother is 'unfit.' "
The Defendant has used the "sole custody" moniker to his advantage in an effort to minimize the Plaintiff's rightful role in the children's lives. He has abused his custodial position to run amok of the May 2003 order relative to therapy, and to circumvent Plaintiff's right to be involved in major decision making relative to the minor children. Sole custody to the Defendant has not provided for better functioning of this family, in this post-dissolution status, and is no longer in the minor children's best interests.
Further, the Plaintiff appears to have made positive changes since May 2003. As stated above, the Plaintiff has disengaged from her previous outrageous behavior of false allegations of sexual abuse; intrusion into Defendant's home while he had visitation; several instances of police involvement; taking the children away during Defendant's scheduled visitation; interfering with the Defendant's telephone contact with the minor children; and alienating the Defendant from the children's school, to name just a few. Contrary to her prior conduct, the Plaintiff would appear to be deferential to the Defendant's high-handed parenting style.
The children share a warm and loving relationship with the Plaintiff and are desirous of more time with her than is currently allotted in the May 2003 decree. In addition to the changes of and between the Plaintiff and Defendant, the court finds that it is in the best interests of the minor children that the current order of custody be modified.
CONCLUSION
After considering all the evidence, statutory mandates and case law, for the foregoing reasons the court hereby DENIES the Defendant's Motion for Relocation and GRANTS the Plaintiff's Motion to Modify Custody, in part.
ORDERS
The court enters the following orders:
The following provisions shall be inserted in lieu of §§ 1A, 1B, 2A, 2C, 2D, and 2E of the May 1, 2003 order:
1) The Plaintiff and Defendant shall have joint legal custody and shared physical custody of the two minor children. So long as the Defendant resides there, Woodbury shall be designated as the minor children's residence for school purposes only.
2) The parties shall have the following access time with the minor children, on a two-week cycle:
Week 1: The Defendant shall have the children from after school on Monday until Thursday morning, at which time the Defendant shall deliver the children to school. The Plaintiff shall have the children from after school on Thursday, until Monday morning, at which time the Plaintiff shall deliver the children to school.
Week 2: The Defendant shall have the children from after school on Monday until Wednesday morning, when he shall deliver the children to school; and from Friday afterschool until Monday morning, when Defendant shall again deliver the children to school. The Plaintiff shall have the children from Wednesday after school until Friday morning, when the Plaintiff shall deliver the children to school.
3) At the time of the Plaintiff's or the Defendant's required drop-off to school, if school is not in session for any reason, such as, but not limited to, school holiday, vacation, summer recess, or weather-related closing, the parent with custody of the children on that morning shall return the children to the other parent's home by 3:00 p.m. that day.
4) Each party shall have access time with the minor children during the summer for two (2) non-consecutive 14-day periods. Each party shall supply the other with his/her summer weeks' selection no later than April 30 of each year. In the event of disagreement, Plaintiff's selection shall prevail in odd years and Defendant's selection shall prevail in even years.
The following provisions shall be inserted in lieu of §§ 3A, 3B, 3C, 4B, 6, 7A, 7B, 7C, 7D, 7E and 8 of the May 1, 2003 order:
5) The minor children shall recommence counseling with a licensed therapist that the parties, in consultation with the GAL, agree upon. Absent agreement, the matter shall be resubmitted to the court. The minor children shall engage in counseling for so long as deemed necessary by the therapist.
Both parents shall cooperate with the recommendations of the therapist. Both parents shall make themselves available to the therapist as the therapist deems necessary. Both parties shall provide to the therapist any information the therapist deems necessary.
6) The parties shall consult with each other regarding all "major decisions" affecting the minor children's health, education and general welfare. Major decisions include decisions affecting school and religious education, residency, selection of camps, participation in activities that require parental permission because of risk of injury, and other similar issues, and/or mental, emotional and psychological health of the children that typically involve third parties, including, but not limited to, doctors, dentists, teachers, therapists and counselors. "Major decisions" shall not include day-to-day parenting decisions. So long as the Defendant resides in Woodbury, the children's primary care physician shall be Southbury Pediatric Associates. Both parents shall have open and equal access to any and all of the minor children's school and medical records, or any other records pertaining to the minor children. Each party shall execute any documents necessary to effectuate this order.
7) All other orders set forth in the May 1, 2003 Memorandum of Decision and its partial modification of February 15, 2005 remain in the best interests of the minor children and survive this Judgment. They are hereby incorporated into this Judgment as if fully set forth herein.
8) The Guardian Ad Litem's (GAL's) invoice for professional services, attached to her affidavit dated February 15, 2007, has been reviewed by the court. The court finds the GAL's hourly rate and time expended to be reasonable and approves the same.
The Plaintiff and Defendant are each responsible for fifty percent (50%) of the GAL's fees and expenses incurred. All outstanding balances due shall be paid within 30 days of the date of this Judgment.