Opinion
FA166101335S
11-14-2017
Susan Myers v. Neil Myers
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth L. Shluger, J.
The plaintiff who was a resident of Stonington, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on April 26, 2016. At the time, the defendant was a resident of Stonington, Connecticut.
The court finds that it has jurisdiction and that all statutory stays have expired. A fully contested trial was held before the undersigned on October 11, 13 and November 6, 2017. Both parties appeared at trial and the plaintiff was represented by counsel.
The court has fully considered the criteria of General Statutes § § 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.
FACTUAL FINDINGS
The court finds that the following facts were proven by a preponderance of the evidence:
1. The defendant and plaintiff whose maiden name was Cammarota were married on June 24, 2000 in New York.
2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.
3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.
4. There have been born to the wife two children since the date of the marriage; namely, Benjamin born September 30, 2005 and Daniel born December 18, 2010. No other children have been born to the wife since the date of the marriage.
5. Neither party has received assistance from any State or local agency.
6. The parties engaged in classic, high conflict, pre-dissolution litigation regarding family matters, including restraining orders, " anonymous" reports to DCF, motions for contempt, motions for modification, calls to the police, countless arguments over seemingly minor parenting issues and a referral for a comprehensive family relations custody evaluation.
7. The main issues which separate the parties include joint versus sole custody, the exact access schedule, whether the husband should pay alimony and child support, whether the wife should have the right of first refusal if the children are left alone and the division of the wife's retirement accounts.
8. At the time of the marriage, the parties had few assets and the parties have few assets to divide at this time.
9. The husband, 54 years old, is a self-employed hypnotherapist with an office on the first floor of his apartment on Broad Street in New London, Connecticut and a second office in Cheshire, Connecticut. He claims to earn $1,024 per week gross and $738 per week net. He was born in London, England and is highly intelligent. He has a joint bachelor's degree from the University College of London, and a post graduate diploma in Law from the Central London Polytechnic. In addition, he is skilled in the areas of sales and marketing.
10. The wife, 46 years old is highly intelligent with a degree in English and Communications. She was a successful copywriter in New York City. The family moved to Old Lyme, Connecticut in 2012 and in 2014, moved to the wife's mother's home in Mystic, Connecticut, where the wife and the children presently reside without the necessity of paying rent. The wife works as a self-employed freelance copywriter earning approximately $125 per week gross and operates an Airbnb in the in-law apartment of her mother's home earning approximately $305 per week gross.
11. The parties have been separated since September 2016 with the husband vacating the marital residence.
12. Both parties are in good health.
13. There presently exists as marital assets the wife's bank accounts of $5,100, the wife's premarital Pearson 401(k) plan valued at $29,000, the wife's marital Kensington 401(k) plan valued at $32,000 and the husband's bank account valued at $600. The family owned a VW Passat, purchased with money inherited by the husband, which was totaled and an insurance check for its loss in the approximate amount of $5,000 went to the husband.
14. The parties have little or no debt but for attorneys fees which may be due and owing.
15. The wife lives in her mother's home rent free and drives her sister's vehicle at no cost to her but for insurance and gas. The court finds these to be regular and recurring gifts which are not includable as income for purposes of the child support guidelines, but can be considered as it pertains to the other financial orders. While the husband argues that the free rent should be considered at the rate of $1,600 per month, the court disagrees. While it is possible that said home would rent for $1,600 per month, the court finds that the wife could not afford such a rental and thus, if she was forced into the rental market, she would be forced to settle for something much less expensive and probably not in Mystic.
16. The father is presently paying child support in the amount of $100 per week and alimony in the amount of $150 per week and is apparently making ends meet. As an entrepreneur, he works very hard trying to make his business a success and he lives modestly. Nonetheless, he is paying his bills and is incurring no debt.
17. The father is seeking an order that the mother's parents return to him two Turkish carpets in their possession. The court knows of no authority, which it has, to order nonparties to turn over property in their possession.
18. The mother is currently under-employed and reliant upon her family's generosity to make ends meet. She is highly intelligent and educated. But even with the alimony, child support, free housing and a free automobile, she is not making ends meet. While the court recognizes that she will need some rehabilitative alimony to become self-sufficient, that cannot be a permanent or long-term situation. The court also recognizes these regular and recurrent gifts from her family members.
19. The parties have just recently filed a joint tax return for 2013 and have neglected to file tax returns for the ensuing years.
20. During most of the marriage, the husband was belligerent, authoritative, arrogant, bossy and oppositional toward the wife. In January 2016, the wife discovered, and the husband ultimately admitted, that he was having an affair with a 22-year-old client who suffers from substance abuse and mental health issues. The husband also groped his children's young, female art teacher's buttocks in the presence of the children causing him to be forever banned from the premises. The husband has engaged in other questionable behaviors including causing a huge scene at an open house for a 4H club in the presence of the children. In addition, he took the children to spend a day at the beach in Rhode Island with his lawyers and the children were aware of that fact. The cause of the dissolution is found to be primarily the husband's.
21. The defendant is a devoted father. He is completely engaged in the children's education and activities. His intellect and life experiences enable him to give to the children, who both parents agree shall be homeschooled, great insights and knowledge. In fact, the wife, the husband and the family relations officer all recommend that the parties share access with the children with the father having approximately 12 nights per month and the mother having 16 nights per month. While they differ as to which nights should be shared and whether the mother's preference of sole custody should be ordered, no one has suggested that the father's time with the children should be limited, supervised or curtailed. The family relations officer recommended joint custody with neither parent having final decision making authority.
22. The parties stipulated and agreed that the children should continue being homeschooled. The mother has been primarily responsible for the formal curriculum of the children in language arts, social studies and science. The father teaches the children math but he engages in a more experiential form of education with frequent field trips to museums, art classes, the Mystic Seaport and Aquarium and other venues. In addition, the children are engaged in piano and violin lessons, art classes, summer camp programs and some sports such as swimming and soccer.
23. The parties disagree vehemently about which art program the children should attend. The mother prefers the Art Barn in Niantic where the older child has gone for four years and the younger child has gone for one year while the father prefers a program at the Norwich Free Academy. The mother claims that the children are more comfortable with the Niantic program. The father opposes the Niantic program because he finds it too simplistic and he has been banned from its premises due to an altercation which he had with one of the teachers. The father claims that the Norwich Free Academy program is superior and he is willing to pay 100% of its cost. The parties had an arrearage from the Art Barn program at the end of the last term and owed $800 as of May 2017. The mother paid $200 in May of 2017 and $350 in September of 2017, but there is presently a balance due in the amount of $350 which should rightfully be the father's responsibility.
24. The court finds that if an art program is to be an integral part of the children's lives and the father is unable to participate or even step onto the property, that program is probably no longer a good fit, despite the fact that the father may have brought this circumstance upon himself.
25. The children have been engaged with a therapist selected by the mother. The father opposes this therapy because it was chosen by the mother without his input and the father questions the therapist's qualifications and methodology. The father told the children that this therapy was not beneficial.
26. The mother is fearful that the father, a citizen of Great Britain, might take the children out of the country and thereafter, be unable or unwilling to return the children to the United States. She requests that there be no international travel with the children. The court does not find the father to be a flight risk from the United States, but finds that international travel should be by written agreement of the parties or by court order only.
27. The mother's occupations, freelance copywriting and managing her Airbnb provides complete flexibility in scheduling her work time when not engaged in caring for the children. The father's occupation is much more demanding and requires sessions of up to three hours in length with clients whose schedules sometimes conflict with his caregiving responsibilities.
28. Both parents mistrust the other; the husband questions whether the children are safe with the wife's Airbnb guests on her premises and the wife questions the husband's judgment in leaving the children alone to play while he works, allowing third parties to transport the children when he is otherwise occupied and sharing information about the case with the children. The wife claims that the husband allows the children to be transported in an Uber unescorted by someone known to them. The husband claimed that the Uber driver was actually a friend known to the children. The wife claims that the children are left alone when the husband is seeing patients. The husband claims that the children are fine to play alone and that he is never far away. The parties clash on virtually every issue from transportation of the children, homeschooling of the children, extracurricular activities for the children, supervision of the children and the sharing of information. It appears that the parties are on parallel tracks, caring for and educating the children while in their respective custody and that they do not coordinate or share information or tasks. The mother identified a 4H homeschool Co-op, which had sessions on Fridays. The children and the parties attended an orientation program at the facility. The father brought a friend and was clearly not engaged as he and his friend were loudly chatting together throughout the presentation. The father told the children that the program was no good and undermined the mother in her efforts to engage the children in the program. The father ordered the mother to leave the facility as it was " his day" and threatened to call the police. The mother left rather than creating a scene and the children were never enrolled. While it is understandable that the father might be opposed to this particular program as it fell on " his parenting day" and required a full day of attendance plus several hours of volunteer work on the part of the parent, his approach was horribly flawed. He should not have engaged in those negative behaviors in the presence of the children and should have discussed his issues privately with the mother at another time. The court finds that the ability of the parents to co-parent or communicate civilly or effectively is virtually non-existent but that there was no evidence that the children have suffered or missed out on an opportunity as a result. The father parents on his days and the mother parents on her days and the children enjoy rich and diverse curricular and extracurricular experiences as a result.
29. The mother seeks an order of sole custody and the father seeks an order of joint custody with neither parent being designated as the primary custodian. Nevertheless, the parties both advocate that the father should have approximately 12 overnights per month with the mother having approximately 16 overnights per month. The father's plan would have him caring for the children in week one, from Wednesday morning until Friday evening and in week two from Wednesday morning until Sunday evening. The mother's plan would have the father caring for the children from Saturday at 8:00 p.m. until Tuesday at 11:00 a.m. each week. The mother believes that her plan is superior as it would give her the time to homeschool their children primarily during the week. She criticizes the father's plan as having too many occasions when he is called to work while caring for the children which requires him to either leave them alone, or to call her for backup. The father criticizes the mother's plan as not allowing for either parent to have a full weekend.
30. The family relations officer, Lisa Reveruzzi, conducted a comprehensive evaluation commencing on or about January 26, 2017, and completed on or about June 30, 2017. Ms. Reveruzzi recommended joint legal custody of the minor children with primary residence with the mother. She recommended that the father have the children every Monday from 6:00 p.m. until Thursday at 11:00 a.m. She further recommended that the father should endeavor not to schedule clients during his access time with the children absent an emergency and not leave them unsupervised for more than 45 minutes at a time. She does not share the father's concerns that the mother's Airbnb customers might come into contact with the children. She believes that the father has, on occasion, exhibited poor judgment and lacks the insight and ability to put the children's needs before his own needs. She believes that while the mother's lapses in judgment are primarily related to the discord involved in the divorce, the father's lapses in judgment are more fundamental. She further recommended that each parent be entitled to three weeks of vacation time with the children during the year, two of which may be consecutive. She recommended that the children continue with therapy until they are successfully discharged. She further recommended that the parties communicate by way of an online program and that they participate in the judicial branch's Intensive Case Management Program and complete the on line Skills For Cooperative Parenting Program, which the father indicated he would not willingly pursue.
31. The court finds that if this were an intact family, it is likely that the parents would have provided post-majority educational support to the children so the court will retain continuing jurisdiction regarding post-majority educational support pursuant to C.G.S. § 46b-56c.
LEGAL DISCUSSION
CUSTODY AND VISITATION
Connecticut General Statutes § 46b-56 provides:
(a) In any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children if it has jurisdiction under the provisions of chapter 815p. Subject to the provisions of section 46b-56a, the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party to the action, including, but not limited to, grandparents.
(b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. Such orders may include, but shall not be limited to: (1) Approval of a parental responsibility plan agreed to by the parents pursuant to section 46b-56a; (2) the award of joint parental responsibility of a minor child to both parents, which shall include (A) provisions for residential arrangements with each parent in accordance with the needs of the child and the parents, and (B) provisions for consultation between the parents and for the making of major decisions regarding the child's health, education and religious upbringing; (3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child; or (4) any other custody arrangements as the court may determine to be in the best interests of the child.
(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, but shall articulate the basis for its decision.
" Under Connecticut law, the trial court's discretion as to custody and visitation is not limited to [adopting the specific custodial arrangement sought by one of the parties]. It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement . . . Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child." Fiddelman v. Redmon, 37 Conn.App. 397, 403-04, 656 A.2d 234 (1995).
In any custody order, the court is bound by what is in the best interests of the children. Simons v. Simons, 172 Conn. 341, 374 A.2d 1040 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260, 99 A.2d 104 (1953), Connecticut General Statutes § 46b-56. The court must also give consideration to the preference of a child or children if that child is of sufficient age to be capable of forming an intelligent decision. The rights, wishes and desires of the parents are also a factor to be taken into account. Both considerations, however, must be subordinated to the best interest of the child. Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980).
In this case, both parents are engaged in the lives of their children and have much to offer to them. While the mother seeks an order of sole custody or final decision making authority, the court finds joint custody with no final decision making authority at this time is more appropriate and is in the children's best interest. There is simply no evidence that the children are missing out on opportunities under the present scenario.
PROPERTY DISTRIBUTION
General Statutes § 46b-81 provides:
(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either spouse all or any part of the estate of the other spouse. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either spouse, when in the judgment of the court it is the proper mode to carry the decree into effect.
(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
(c) In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.
" The Superior Court may assign to either spouse all or any part of the estate of the other spouse . . . In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." Zern v. Zern, 15 Conn.App. 292, 295, 544 A.2d 244 (1988).
A court may find that consistent and recurrent gifts in the past are likely to continue into the future and a court may consider those sums in fashioning its financial orders. Lusa v. Grunberg, 101 Conn.App. 739, 923 A.2d 795 (2007).
As the court held in Anderson v. Anderson, 191 Conn. 46, 56, 463 A.2d 578 (1983), " There was evidence that the defendant's mother, who was 89 years old at the time of trial had sent about $40,000 for which no note had been signed. The reasonable thrust of such evidence amply supports the trial court's view that apparently from contributions by her family there is the possibility of the future acquisition of capital assets."
In Winters v. Winters, 140 Conn.App. 816, 826, 60 A.3d 351 (2013) the trial court was reversed for excluding recurring gifts in its assessment of the defendant's income.
The evidence is uncontroverted that the wife is receiving in kind gifts from family members in the form of free housing (which produces an income) and the use of a free car. These gifts are found to be regularly recurring and have been considered in fashioning these orders.
ALIMONY
Connecticut General Statutes § 46b-82 provides:
(a) At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment.
(b) If the court, following a trial or hearing on the merits, enters an order pursuant to subsection (a) of this section, or section 46b-86, and such order by its terms will terminate only upon the death of either party or the remarriage of the alimony recipient, the court shall articulate with specificity the basis for such order.
" The traditional purpose of alimony is to meet one's continuing duty to support." Borkowski v. Borkowski, 228 Conn. 729, 735, 638 A.2d 1060 (1994).
The court in Marmo v Marmo, 131 Conn.App. 43, 26 A.3d 652 (2011) held:
" The traditional purpose of alimony is to meet one's continuing duty to support . . . [C]ourts have begun to limit the duration of alimony awards in order to encourage the receiving spouse to become self-sufficient." Roach v. Roach, 20 Conn.App. 500, 506, 568 A.2d 1037 (1990). " [U]nderlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency . . . A time limited alimony award generally is for rehabilitative purposes but other reasons may also support this type of alimony award . . ." Another valid purpose for time limited alimony is to provide interim support until a future event occurs that makes such support less necessary or unnecessary . . . In Wolfburg, [ supra, 27 Conn.App. 402] our review of the record revealed that the time limited alimony award was found to provide interim support until the minor child reached the age of majority . . . This constituted a valid purpose for an award of time limited alimony. Other future events that may require interim support through an award of time limited alimony include occurrences such as a bond maturation, trust disbursement, or mortgage maturation."Ippolito v. Ippolito, 28 Conn.App. 745, 752, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).
In this case, the husband has greater income and greater earning capacity. While the wife has great intellect and skills, she has not, heretofore, maximized her earning capacity and a period of rehabilitative alimony will permit her the opportunity to do so.
EARNING CAPACITY
" In appropriate circumstances, the trial court may base its financial orders on earning capacity rather than actual earned income." Schade v. Schade, supra, 110 Conn.App. 68. " [I]t is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age, and health . . . [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable. Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings." (Internal quotation marks omitted.) Fritz v. Fritz, 127 Conn.App. 788, 796, 21 A.3d 466 (2011). In determining a party's earning capacity the court must rely on specific evidence. See Carasso v. Carasso, 80 Conn.App. 299, 307-09, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004).
A party's earning capacity or lack thereof can serve as a basis for a substantial change in circumstances for purposes of modifying a support award. For example, in Simms v. Simms, 283 Conn. 494, 503-04, 927 A.2d, 894 (2007), the Supreme Court concluded that the trial court properly found a change in circumstances based in part on the defendant's reduced earning capacity because he voluntarily retired. Similarly, in Salzarulo v. Salzarulo, Superior Court, judicial district of Hartford, Docket No. FA-00-0725814-S, (March 19, 2004, Prestley, J.), this court found that an increase in the plaintiff's earning capacity coupled with the defendant's reduced work schedule to forty hours per week constituted a substantial change in circumstances. Additionally, in Carasso, the plaintiff audited business courses at a university which increased her employability and her job history since the dissolution judgment also demonstrated that her earning capacity had increased. Carasso v. Carasso, supra, 80 Conn.App. 308. The court determined that this evidence established a basis on which to modify the defendant's alimony obligation. Id., 308-09. Accordingly, it is submitted that evidence demonstrating the plaintiff is working below her earning capacity and/or that her employability has increased can be used to establish that a substantial change in circumstances exists warranting a modification of the alimony award.
" In a marital dissolution proceeding, the court may base financial awards on earning capacity rather than actual earned income of the parties . . . While there is no fixed standard for the determination of an individual's earning capacity . . . it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health . . . [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable. Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings." Watrous v. Watrous, 108 Conn.App. 813, 822, 949 A.2d 557 (2008).
Both parties have argued that the court should find that the other has an earning capacity in excess of their actual income. The husband argues that the wife has an earning capacity of $53,000 per year. He computes that figure by arguing that her free rent is equal to $1,600 per month or $19,200 per year, that her Airbnb income is equal to $28,800 per year and that her wages are in fact $5,000 per year. The court finds that this is simply argument and speculation and not based on evidence. There's no evidence that the wife could afford to or would in fact rent housing at a cost of $1,600 per month if she was forced into the rental market. There is no evidence that the wife can or ever has earned anything approaching $28,800 per year in her Airbnb income. The court rejects this earning capacity argument.
The wife argued in her closing argument that the husband has an earning capacity of $1,500 per week, or $75,000 per year. There was simply no evidence to support this finding and the court rejects this earning capacity argument.
At the conclusion of the hearing, the defendant presented his Motion for Sanctions, Fees and Costs (138), dated September 15, 2016. The plaintiff had filed a Motion to Recuse the Defendant's Counsel (#117) dated July 21, 2016. The court denied the motion. The defendant now seeks an award of attorneys fees against the plaintiff for filing said Motion to Recuse.
There is a long line of cases establishing a high bar in awarding attorneys fees for what is known as the bad-faith exception to the general rule that each party pays their own attorneys fees. There must be clear evidence that the challenged actions are entirely without color and are taken for reasons of harassment or delay or for other improper purposes. Berzins v Berzins, 306 Conn. 651, 652-53, 51 A.3d 941 (2012), Maris v. McGrath, 269 Conn. 834, 848, 850 A.2d 133 (2004). See, Lederle v. Spivey, 174 Conn.App. 592, 602, 166 A.3d 636 (2017).
The plaintiff argued convincingly and the court finds proven that it filed the Motion to Recuse based on a good faith belief that the defendant and his attorneys had crossed the line of simply engaging in an attorney-client relationship. The defendant had become a tenant of his attorneys and one of his attorneys had become the client of the defendant receiving treatments from him. Moreover, the defendant and his children spent a day at the beach with his attorneys during the pendency of the litigation. The plaintiff researched the applicable Rules of Professional Conduct and various formal opinions of the Ethics Committee of the Connecticut Bar Association before filing said motion. There is simply no evidence that the Motion to Recuse, while ultimately denied, was filed in bad faith and entirely without color of law. The motion for sanctions is denied.
The plaintiff pursued a Motion for Accounting (153) and a Motion to Compel (162). In the Motion for Accounting, the plaintiff is essentially seeking an accounting of and a sharing of the proceeds for the defendant's automobile, which was totaled and paid for by insurance. The court has considered the motor vehicle and the proceeds flowing therefrom in its orders. The Motion for Accounting is therefore unnecessary and is denied.
In the Motion to Compel, the plaintiff complains that following the defendant's deposition, he failed to produce further written records of his income or his appointment books. The defendant testified credibly that following his deposition, when he realized that said records would be the subject of discovery, he ceased keeping said records. Since the records do not exist, their production cannot be compelled. The motion is denied.
ORDERS
The court orders the following:
1. The parties shall share joint legal custody of the minor children. Neither party shall injure the children's opinion of the other parent by their words or their actions. Neither parent shall permit any third party to injure the children's opinion of the other parent by their words or their actions. Neither party shall discuss any adult matters with the children, including but not limited to this trial or any other court-related matter. Neither parent shall have the final decision-making authority.
2. Effective November 27, 2017, the father shall enjoy access with the children on Monday from 10:00 a.m. until Tuesday at 8:00 p.m. each week and every other weekend from Friday at 10:00 a.m. until Sunday at 8:00 p.m. The children will be with the mother the remainder of the time. Each party shall enjoy three weeks time with the children during the year, two weeks of which may be consecutive. The parties shall not elect their time during the holidays listed below. Each parent shall notify the other of their desired weeks 30 days in advance. In odd years, the father's choices will prevail and in even years the mother's choices will prevail. The father should endeavor not to schedule clients during his access time with the children absent an emergency and not leave them unsupervised for more than 45 minutes at a time.
3. For Thanksgiving, the mother shall have access in odd years and the father in even years from Wednesday at 8:00 p.m. until Thanksgiving Day at 8:00 p.m. Father shall have access in odd years and mother shall have access in even years from Thanksgiving Day at 8:00 p.m. until Friday 8:00 p.m.
4. On Christmas, the holiday shall be shared by mutual agreement. If the parents are unable to agree, father shall have his choice for this holiday in odd years and mother shall have her choice in even years.
5. All Jewish holidays including the Jewish New Year and Yom Kippur shall be shared by mutual agreement. If the parties are unable to agree, father shall have final decision-making authority for Jewish holidays in even years and mother shall have final decision-making authority for Jewish holidays in odd years.
6. The father shall have access with the children on Father's Day each year from Saturday at 6:00 p.m. until Sunday at 8:00 p.m. and the mother shall have access with the children on Mother's Day each year from Saturday at 6:00 p.m. until Sunday at 8:00 p.m.
7. During their respective parenting time, each parent shall have the right to choose the manner of supervision and the persons supervising. Each party retains the sole right to select babysitters and caregivers when the minor children are with said parties at their own expense.
8. Each party shall have reasonable and liberal telephone and Facetime contact with their parent when they are in the custody of the other parent.
9. The children shall take art classes at Norwich Free Academy at the father's expense as he offered to do. The cost of all other mutually agreed extracurricular activities shall be shared equally.
10. The court finds the presumptive child support per the Child Support Guidelines to be $100 per week plus 50% payment of health expenditures and work qualifying day care expenses. The court orders the father to pay as child support the sum of $100 per week and the parties shall divide equally any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or agreed-upon extracurricular activities. Each parent shall be responsible for daycare or babysitting when the children are in their care.
11. The court orders the husband to pay periodic alimony to the wife in the amount of $150 per week. Said alimony shall be taxable income to the recipient and shall reduce the gross income of the payor. Said alimony will terminate upon the earlier of four years, the death of either, or the wife's remarriage or civil union.
12. The father shall pay the balance due to the Art Barn within 90 days.
13. The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to C.G.S. § 46b-56c.
14. The parties shall maintain medical and dental coverage for the minor children as available through their employment at a reasonable expense or else utilize Husky.
15. The parties shall communicate by way of an online program such as www.ourfamilywizard.com or any other program they can agree to use and keep each other informed of the children's curricular, extracurricular, medical, dental, therapeutic and sports activities.
16. Both the wife's premarital Pearson 401(k) plan valued at $29,000 shall remain hers and the wife's marital Kensington 401(k) plan valued at $32,000 shall remain hers alone in recognition of the husband's causing the dissolution and his superior earning capacity.
17. Each party shall keep their own bank accounts.
18. The father shall retain the proceeds from his VW Passat.
19. The wife may take the dependency exemption each year of the older child and the husband shall take dependency exemption of the younger child. When there is only one child eligible for the dependency exemption, the wife will claim the child in odd years and the husband will claim the child in even years.
20. Each party shall be solely responsible for the debts and liabilities as set forth on their respective financial affidavits filed with the court. They shall hold harmless and indemnify the other from all liability therefrom.
21. Each party shall pay their own counsel fees.
22. The wife's name is ordered restored.
23. Each party shall use their best efforts to obtain life insurance in the amount of $100,000 on their life for the benefit of the minor children naming the other parent as the trustee. Said policies shall remain in full force and effect until the youngest child reaches 23 years.
24. The husband shall retain any and all rights to his hypnotherapy business and to any book royalties, past and future, for anything that he has written including but not limited to Sherlock Holmes One-Man Play.
25. Dissolution may enter.