Opinion
HHDFA124063581S
02-27-2018
Gheorghe Dijmarescu v. Lhakpa Sherpa
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bozzuto, Elizabeth A., J.
MEMORANDUM OF DECISION RE MOTIONS #200, 201, 202, 204, 205, 219, 221, AND 223
Bozzuto, J.
I
INTRODUCTION
Before the court are six postjudgment motions for contempt filed by the plaintiff, and two postjudgment motions to modify custody and visitation filed by the defendant. Generally, the plaintiff alleges that the defendant has willfully failed to comply with the parenting plan, as ordered by the court (Simon, J.) on January 5, 2015, and thereafter temporarily modified by the court (Adelman, J.) on July 11, 2017. Alternatively, the defendant moves to modify the parenting plan to eliminate the plaintiff’s visitation with the minor children.
II
HISTORY
The plaintiff and defendant share two minor children, both girls, ages fifteen and eleven. After a multiple day hearing, the court (Simon, J.) dissolved the marriage of the parties on January 5, 2015, and entered orders of custody and visitation. As the court noted at the time, the sole issue between the parties was the custody and visitation of their two minor children. The court has reviewed the trial court’s findings and takes judicial notice of the trial court’s memorandum of decision dated January 5, 2015.
The court entered the following orders, amongst others, on January 5, 2015, relative to the orders of custody and visitation at issue in this present proceeding:
Husband shall have regular parenting time as follows:
a. Every Sunday from 10 a.m. to 7 p.m. Father shall provide lunch and dinner for the children.
b. Alternating Saturdays from 10 a.m. to 7 p.m. Father shall provide lunch and dinner for the children.
c. Days of gymnastic classes from after school until 7 p.m. or later as approved by the wife. Father shall provide dinner for the children.
d. Any other day during the week as approved by the wife.
The order further provided:
No overnight access until further order of the court. Until further order of the criminal court said visitation access shall be supervised by one of the following parties: Elena Dijmarescu, Antonella Bona, or Dr. Matthew Ciscel should they agree to accept the role of supervisor. Said supervisors shall be responsible for picking up the children from the mother and returning them on time to mother. Mother may agree to another supervisor as she deems appropriate. If the criminal court lifts the restriction of husband having only supervised visitation this court shall also allow husband to have unsupervised visitation as set forth above.
On or about December 21, 2015, the plaintiff was found not guilty of assault and violation of a protective order, but was found guilty of breach of peace. The plaintiff has appealed the conviction. A permanent criminal protective order remains in place against the plaintiff in favor of the defendant. There is no order of protection as to the minor children.
After the date of judgment, the plaintiff filed the first of several post judgment motions in this case. His motion for contempt, filed April 19, 2016, was denied, although the court (Albis, J.) reminded the defendant that it is her " responsibility to facilitate and ensure the occurrence of Plaintiff’s visits." The plaintiff also filed a motion to modify custody dated July 18, 2016, that was also denied by the court (Ficeto, J.).
Additional motions for contempt were filed by the plaintiff, which eventually led to a stipulation of the parties dated April 12, 2017. By the terms of this stipulation, the plaintiff and defendant agreed that the minor children would reside with the plaintiff from April 16, 2017 through June 11, 2017, while the defendant traveled to Nepal. Both parties fully abided by the terms of this agreement. Upon the defendant’s return from Nepal, the plaintiff promptly returned the children to the defendant, consistent with the terms of the April 12, 2017 stipulation.
It is the events following the defendant’s return to the United States in June of 2017 that has prompted this most recent flurry of pleadings before the court. During the hearing, the plaintiff’s undisputed testimony was that there was " one week of normalcy" after the defendant’s return from Nepal, after which the plaintiff’s visitation with the children became problematic.
III
PLAINTIFF’S MOTIONS FOR CONTEMPT
A
Findings of Fact
As to the plaintiff’s motions for contempt, #200, 201, 202, 205, 221 and 223, the plaintiff alleges that the defendant failed to comply with the court’s visitation orders. There is no factual dispute relative to this allegation. The defendant stipulated to the facts of each motion including missed visits with the plaintiff on June 17, 18, 24, 25 and July 1, 2, 8 and 9, 2017. The defendant, however, did not concede that her failure to comply with the court’s visitation order was willfully defiant.
The parties were before the court on July 11, 2017. At that time, the court (Adelman, J.) appointed a Guardian Ad Litem (GAL) for the children and temporarily modified the courts visitation order of January 5, 2015, allowing for one visit per week on Saturday from 1 p.m.-2 p.m., as well as phone contact on Sunday, Wednesday, and Friday. Thereafter, the defendant continually failed to comply with the visitation order.
The plaintiff’s motions for contempt were continued several times without resolution and eventually scheduled for hearing before the court. The hearings on the plaintiff’s motions for contempt and the defendant’s motions to modify extended over five days.
Although the defendant stipulated to the fact that the children were not visiting with the plaintiff, visits ordered by the court, she claimed it was because the children did not want to visit with the plaintiff. She testified that the children plead with her not to make them go for the visits. She became very emotional as she explained her unsuccessful efforts to persuade the children to visit with the plaintiff.
After the first day of hearing, the court made it very clear to the defendant that it was her responsibility to comply with the order for visitation, and not the children’s. The defendant clearly communicated that she understood. Thereafter, the children were present for all court ordered visitation with the plaintiff, although the required phone calls were either inconsistent or non-existent.
At the plaintiff’s request, the GAL was present for the plaintiff’s visitation on December 2, 2017, which was his first visit with the children since June of 2017. Both children were present. The GAL testified that from his observations, the children were " comfortable" with the plaintiff and the visit went well. Further testimony from other observers of the children’s time with the plaintiff corroborate the GAL’s testimony.
Since that time, the children have continued to visit with the plaintiff for one hour per week on Saturday consistent with the court’s temporary order of July 11, 2017. Additionally, the plaintiff and defendant have agreed on additional and extended time for the children to be with the plaintiff without any court intervention. The court credits the parties for independently reaching an agreement as to this additional parenting time without the need for court intervention. But the visits have not been entirely without incident, more so relative to Sunny, who is soon to be sixteen years old.
The GAL testified that Sunny, in particular, is made to feel by the plaintiff like she can’t meet his expectations. Sunny finds the plaintiff to be angry, rude and disappointed in what she does. The court credits this testimony, as the plaintiff’s own testimony supports his displeasure with Sunny’s choice of clothing, style and friends.
It is clear to the court that the plaintiff loves his children, and that he wants what is best for them, across the board. But in times of disagreement, the plaintiff reacts by simply imposing his will, without regard for his teenage daughter’s thoughts, desires, feelings or emotions. This approach has not proven to be successful with Sunny, and the plaintiff’s relationship with her is suffering as a result.
B
Law and Discussion
" A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed ..." (Internal quotation marks omitted.) Gina M.G. v. William C., 77 Conn.App. 582, 592, 823 A.2d 1274 (2003). " Noncompliance-alone will not-support a judgment of contempt ..." (Internal quotation marks omitted.) Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001). " In order to constitute contempt, a party’s conduct must be wilful." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757, 761 (1998). In other words, the court must be presented with credible and reliable evidence that the failure to comply with the court order was done with intention and purpose. Further, the court must find that the defendant violated the order by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015).
Although it is beyond dispute that the defendant failed to comply with the court’s order of visitation, given the totality of the evidence, including the plaintiff’s conduct toward the children and the children’s reaction thereto, the court cannot find by clear and convincing evidence that the defendant’s failure to comply with the court order, even though wrongful, was done so willfully, as is required by law to necessitate a finding of contempt. The court does not find that the children’s rebuff of the plaintiff equates to willfulness on the defendant’s part for the following reasons: (1) after the court impressed upon the defendant that it was her responsibility to ensure that the children attend the court ordered visitation with the plaintiff, the order was complied with; 2) the older child is at an age where she is demonstrating her individuality and independence, exhibiting little regard for the defendant’s efforts at compliance with the court’s order; (3) the plaintiff’s approach to parenting causes the children to gravitate away from him and toward the defendant; and (4) the defendant has agreed to additional visitation beyond that which is required by the court’s order.
C
Conclusion
In absence of a finding by clear and convincing evidence that the defendant willfully failed to comply with the court’s order of visitation, the plaintiff’s motions for contempt are denied.
IV
DEFENDANT’S MOTIONS FOR MODIFICATION
A
Findings of Fact
The defendant’s first motion to modify was filed on July 5, 2017. In it, the defendant simply moves the court to modify, stating that " visitation between the children and plaintiff father stopped on Saturday, June 17, 2017, because the minor children refuse to visit with father." The second motion to modify is dated September 21, 2017, indicates that the visitation is not taking place, and requests that " there be no visitation between father and minor children until there is family therapy."
From a review of the evidence and testimony, the defendant doesn’t assert any claim to support the modification except for the fact that the girls do not want to visit with their father. Both parties acknowledge the children’s resistance. The plaintiff complains that it is the defendant’s fault that the children don’t want to visit. The defendant claims that it is the plaintiff’s anger and temper that make the children reluctant to visit.
The evidence clearly demonstrates that Sunny resists spending time with the plaintiff. Based upon all of the evidence, the court concludes that Sunny’s resistance is more attributable to the plaintiff’s conduct rather than the defendant’s. Consistent with the court record, the testimony before this court, which includes the plaintiff’s presentation before the cout, the court concludes that the plaintiff is aggressive and determined in his position, often without consideration for a plausible and reasonable counter position, even if such position is advanced by the children, or the GAL, as opposed to coming from the defendant.
On the other hand, the evidence also clearly demonstrates that the parties’ youngest daughter, Shiny, enjoys visitation with the plaintiff. Shiny participates fully in the visits with the plaintiff and is engaged. In addition, the evidence demonstrated that Shiny had extended stays with the plaintiff, beyond the court’s order, without any incident.
The family would appear to benefit from the services of a counselor or therapist. Both parties initially testified that they didn’t want the children to engage in therapy. They both agreed that the children had previously engaged in therapy with little success. The court respects the parties’ position in this regard.
After the close of evidence, the parties and counsel appeared before the court for a status conference. At that time the court engaged in a conversation with the parties relative to Sunny and the plaintiff’s relationship. The plaintiff continued to be frustrated with his interaction with Sunny. By the end of the conversation, the parties agreed that Sunny and the plaintiff would engage in counseling at The Village for Families and Children (VFC) with the intention to work on and improve their relationship.
Accordingly, on January 31, 2018, consistent with this agreement, the court ordered that Sunny and the plaintiff participate in therapy at VFC. This order shall remain in effect until modified by the court or VFC discharges the parties.
B
Law and Discussion
" When a court rules on a motion to modify visitation, it is statutorily incumbent on the court that its order be guided by the best interest of the child standard, as set forth in General Statutes § 46b-56." (Footnote omitted.) Szczerkowski v. Karmelowicz, 60 Conn.App. 429, 432-33, 759 A.2d 1050 (2000). In Szczerkowski, the defendant claimed that the court abused its discretion by modifying a visitation order despite its failure to find a substantial change in circumstances. Id., 432. The Appellate Court disagreed concluding that in ruling on a motion to modify visitation, there is no authority requiring the court to find " as a threshold matter that a change in circumstances has occurred." Id., 433.
In considering the statutory factors set forth in § 46b-56 the court finds that it is clearly in the children’s best interest to have and maintain a relationship with the plaintiff. Suspending the children’s time with the plaintiff would not be in the children’s present or long term best interests. The more compelling issue for the court is Sunny’s resistance to visit. It is hoped that with therapy underway, the plaintiff’s relationship with both children will improve.
C
Conclusion
Based upon all the evidence before the court and consideration of the children’s best interests and the statutory criteria, the court denies the defendant’s motions to modify. The court’s orders of January 5, 2015, shall remain in full force and effect, with the only addition being the January 31, 2018 court order for therapy at VFC.
SO ORDERED.