Opinion
No. FA 97-0401394S
November 9, 2005
The pending motions addressed in this decision fall into three categories: motions by both parties to modify the financial orders, motions by both parties for contempt and a related motion by the mother for a declaratory ruling as to the meaning of a portion of the parenting orders regarding parenting time during the summers, and motions filed by plaintiff for counsel fees. The parties appeared before this court for hearing on these motions on 14 days between November 2004 and the present. They were the only persons testifying, and each one also submitted various exhibits into evidence. After the first two days of hearing, with more than twenty undecided post-judgment motions, the court entered scheduling orders on November 11, 2004, and February 24, 2005, requiring the parties to specify their claims and ordered that any issues not identified in submissions to the court pursuant to those orders would be deemed abandoned. As a result, the parties identified the above motions as requiring court decision. Both parties were represented by counsel until plaintiff's counsel was recently allowed to withdraw for health reasons, and the plaintiff has been representing herself pro se since then. Near the end of the hearings, the court also appointed counsel for the minor children. The parties filed post-hearing briefs and appeared for oral argument on October 13, 2005.
This decision disposes of all pending motions between the parties except those seeking to modify the parenting orders for the parties' younger child and plaintiff's request for counsel fees in connection with that issue.
The court has heard and carefully considered all of the evidence presented on these motions according to the standards required by law. The court has had the benefit of transcripts of certain portions of the testimony. The court has scrutinized and evaluated the credibility and demeanor of the witnesses. The court has carefully considered and weighed the arguments of the parties made in their briefs and oral argument. For the reasons explained below, the court enters the following orders: CT Page 14064-gb
(1) Plaintiff's Motions for Contempt #173, 189, 190, 192, 194, 195, 196, 200, and 252 are denied.
(2) Plaintiff's Motions for Sanctions #200, 202, 206, and 213 are denied.
(3) Plaintiff's Motion for Contempt #191 is granted in part and denied in part.
(4) Defendant's Motion for Contempt #208 is denied.
(5) Plaintiff's Motions #170, 173, 176, 221, 236, and 241 and Defendant's Motions #260, 263, and 268 to modify the financial orders are granted in part, though not with the precise relief sought by either party, and denied in part.
(6) Plaintiff's Motion for Declaratory Ruling #244 is denied.
(7) Plaintiff's Motions for Counsel Fees #184, 197, 220, and 222 are denied.
The parties' marriage of thirteen years duration was dissolved by the court, Axelrod, J., after an uncontested hearing on May 27, 1999. Both parties are medical school graduates and physicians. The plaintiff is board-certified in pediatrics, the defendant in internal medicine and ophthalmology. The parties' financial affidavits showed assets worth approximately $1.4 million when the marriage was dissolved, and their separation agreement appears to have sought to divide those assets relatively equally. As the wife was contemplating remarriage, the husband agreed to pay unallocated alimony and support of $13,000 per month until her remarriage, annual child support of $20,000 per child per year afterward, and
the basic cost of private elementary and secondary tuition, when due and summer camp expenses when due . . . [p]rovided that the cost for each child's tuition shall not exceed Eighteen Thousand Dollars ($18,000) per child, per year, unless the HUSBAND consents in writing, or further order of the court.
The parties have two minor children. Leora, born on November 5, 1987, was 11 years old at the time of the dissolution and just turned 18 years old. Ian, born on January 29, 1991, was then 8 years old and is now almost 15 years of age. As part of the dissolution, the court approved a detailed 13-page "Final Custody and Visitation Agreement," which provided CT Page 14064-gc that the mother would be the children's residential custodian during the school year and the father in the summer, premised on the assumption that the wife would soon move to New York City to live with a new husband. Dr. Rudich did move to New York City as anticipated, but within two years she returned to Connecticut and has resided since then in Woodbridge. Other than a brief period during the 2002 school year when Leora lived with her father, the residence of the minor children until this year has been with their mother during the school year and their father during the summer. In the spring of this year, Leora went to live with her father again and she has remained there this fall; and this court recently amended the parenting orders to make the father her residential custodian. Last summer Ian lived at his mother's house, and a motion is now pending from Dr. Rudich to modify the parenting orders for Ian to live with her year-round.
II — MOTIONS FOR CONTEMPT
The party seeking a finding of contempt has the burden of proof. "In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001). After noncompliance with a court order has been established, the burden of showing a defense rests upon the alleged contemnor. Noncompliance with a court order, however, does not mandate a finding of contempt. Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985). "Civil contempt involves the wilful failure to comply with an applicable court order." In Re Daniel C., 63 Conn.App. 339, 369 (2001). "To constitute contempt, a party's conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt." (Internal quotation marks and citations omitted.) Kennedy v. Kennedy, 88 Conn.App. 442, 443-44 (2005). "It is within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure." Id., 405.
The parenting agreement is a very detailed document, obviously the result of lengthy discussion and negotiation between the parties. But the length and detail of the agreement have not alleviated conflict between the parties. Instead, they argue about whether time deadlines have been met, whether they have met the orders' requirements for communication and consultation, and whether they have been deprived of parenting time or parental rights provided by the agreement. The most successful parenting orders are sometimes the most general, and excessive detail may be a recipe for endless squabbling. Dr. Rudich and Dr. Bezahler may have a detailed parenting agreement, but they fundamentally disagree about their children's needs and how to meet those needs. The detail of the parenting CT Page 14064-gd orders has become fuel for their conflict, rather than a device to prevent controversy.
The evidence presented to the court shows a fundamental inability of these two parents to get along or work together for the benefit of their children. Both parties obviously love and care about their children, but, from their testimony and demeanor before the court, they appear to have incompatible personalities and to perceive the best interest of their children completely differently. Dr. Rudich believes that Leora and Ian need constant adult supervision and assistance and has scheduled her life around her view of their needs. She has not practiced medicine in more than ten years, in part because of a hearing impairment that she claims has limited her ability to work as a physician but also in large part because she believes that her children need her. The younger child, Ian, has been diagnosed with attention deficit hyperactivity disorder, and one source of conflict between the parents has been her belief, not shared by Dr. Bezahler, that Ian has needed medication and what she describes as "psychoeducational" tutoring and that Ian requires a highly-structured schedule of school, sports, and activities. The older child, Leora, has been hospitalized for anorexia and psychiatric problems, and Dr. Rudich believes that she still needs regular supervision and monitoring. At hearing on these motions, she described herself in May as a "one person therapeutic community" for her daughter. An affidavit she prepared in March of this year and submitted into evidence manifests her beliefs about the children, their needs, and her responsibilities to them:
For example, an affidavit she submitted into evidence states: "During the spring and summer of 2003, in order to keep her from re-entering the hospital, I provided my own services to her as nutritionist, pediatrician, 24/7 psychiatric attendant, and provided and transported her to appointments on a daily basis to her therapeutic community of professionals in Hamden, Orange, Milford and New Haven. I was responsible for attendance at my daughter's two-hour tutoring session at home, then for coordinating her partial return to school, and finally, for all transportation to and from summer school. I was responsible for maintaining and enforcing strict nutritional plan and all medication management." Pl.'s Ex. 20, ¶ 21.g.
14. My son has special needs. He is 14 years old, and due to his long-standing Attention Deficit Hyperactivity Disorder, and coexisting manifestations of anxiety, he requires a structured environment with adult supervision to a greater extent than other children of his age.
15. My daughter has special needs. The manifestations of her longstanding psychiatric diagnoses have broadened dramatically. She has required, and still requires, far more attention to her medical and mental health than expected at the time of dissolution. At age 17, she requires vigilance beyond the norm due to her diagnoses of eating disorder and depression, longstanding learning issues, and history of alcohol and illegal drug experimentation.
16. The course of my daughter's depression has been CT Page 14064-ge quite complicated, and continues to require parental support and management.
. . .
19. Though I have made extensive efforts to be income producing while balancing the needs of my children, I have been unable to see even one of these efforts to fruition because of the constant demands on my role as primary caretaker for two children with special needs. Their unforeseen and continuing medical and mental health needs have required that I abandon each and every effort I have made in pursuit of my own professional goals.
. . .
21. The demands on my time for the care of my children emanate both from their special needs and also from my role as a single parent . . . i. Now, with both children, in theory, in school "full time," I have very limited time that is not committed to the children.
Pl.'s Ex. 57.
Dr. Bezahler on the other hand, has a much more relaxed attitude toward the children. In the summers, for example, he has given Ian several weeks of unstructured time. Although acknowledging the seriousness of Leora's medical and psychiatric issues, he affords Leora more control over her own life. The difference in the parties' perceptions of their children's needs and medical conditions has caused serious conflict between them. Dr. Rudich, not trusting her ex-husband's assessments of the children's medical situation and believing that he incorrectly dismisses her concerns about their health, makes frequent requests for information from him about the children in order to satisfy her concerns about their well-being while in their father's care. He perceives himself as inundated with an unnecessary barrage of requests from her and sometimes does not respond, or else responds in few words. Most of the contempt issues before the court arise from the parties' different perspectives of the children's needs and how they communicate, and fail to communicate, about those needs.
A. Motion for Contempt #173 — Plaintiff's claim that defendant has not provided "court-ordered documentation" regarding custodial CT Page 14064-gf accounts and trusts or paid required academic expenses 1. Custodial Accounts and Trusts Section 11.1 of the Separation Agreement requires Dr. Bezahler to provide the plaintiff with all documents and statements for a family trust established by his mother for the benefit of the minor children and thereafter to send the plaintiff semiannual statements "for any account held by any trust for the benefit for the children." That section also requires each party to provide the other with semiannual statements for any custodial account either has for the benefit of the children. On March 10, 2004, the court, Domnarski, J., ordered the defendant, pursuant to written stipulation of the parties, to comply with these provisions "on or before April 1, 2004."The plaintiff claims that the defendant did not comply with the March 10 order because, although that Dr. Bezahler gave her most of the required information by April first, he did not provide her with certain pages of the trust agreement and custodial accounts until the end of April. The defendant admitted that was true, but said it was a mistake because these pages were inadvertently omitted from the documents he timely gave her. The court found his testimony credible and no contempt is found, for the court finds no wilful intent to disobey the court's order. Related claims raised in motions numbered 189 and 190 are also denied.
2. Academic Expenses
The court orders require the father to pay the "basic cost of private elementary and secondary school tuition . . . [p]rovided that the cost of each child's tuition shall not exceed" $18,000 per year per child "unless the HUSBAND consents in writing or further order of the Court." That amount covered the cost of tuition and other academic expenses when the parties were divorced and continued to do so until two years ago. After tuition costs exceeded $18,000 per year per child, the father stopped paying for other academic expenses and paid only that amount toward tuition. The mother claims he should be held in contempt for not paying for the other academic costs. The court order is clear, however, and limits his financial obligation to $18,000 per year per child, an amount he has paid. This aspect of the motion is denied.
While these motions were pending, Dr. Bezahler advanced certain sums to Dr. Rudich to cover the cost of travel for Leora during a term-time break, pursuant to an agreement of the parties that, should the mother's motions for contempt or modification of the financial orders not be granted to cover that expenditure, he would get a credit for the sums so paid. The court now orders that any moneys he paid will count as a credit toward any future academic travel for which he is required, under those orders, to pay a portion.
B. Motion for Contempt #191-Plaintiff's claim that Defendant has violated the parenting orders
Plaintiff's motion for contempt #191 claims that defendant has violated CT Page 14064-gg the parenting orders in many ways — among others by not notifying her about illnesses, injuries, or medical treatment; not complying with pickup and drop-off times; not giving her adequate notice when he does not intend to exercise visitation; failing "to be home or have a child care provider available"; and by disparaging and disrespecting her in front of the children.
1. Notification about illness, injury, and medical status
The parenting orders require the parties to notify each other of illness or injury to either child and to keep each other informed of any developments, including changes in a child's medical status, doctor's visits, or medications. Dr. Rudich complains of many instances where she asserts her ex-husband violated this aspect of the orders, primarily with regard to Leora. Dr. Bezahler denied that he has not communicated with Dr. Rudich as required by the orders. He claimed that he always kept her informed about medical information relating to the children.
The court heard extensive testimony on this claim and will not summarize all of the testimony here, in view of the number of issues this decision must address. Examples of the mother's claims are that in 1999 a summer camp official told Dr. Bezahler that Leora was having emotional problems there and he failed to notify Dr. Rudich (which the court does not find proven); in 2002, while Dr. Bezahler had residential custody of Leora, he "refused to communicate" with Dr. Rudich when Leora "began losing weight precipitously" (which the court did not find proven); in February 2003, when Leora told her father that she was suicidal, "the father did not notify the mother" but instead "may have told the daughter that she should inform her mother" (which the court did not find proven); in December 2003 and summer 2004 the father became aware that Leora was "cutting her arms with razor blades" and was not taking her medication and did not inform the mother (which the court finds to be proven); in December 2003 he failed to notify Dr. Rudich that a doctor had recommended hospitalizing Leora (not proven); in summer 2004 Leora had medical appointments about which Dr. Bezahler did not notify Dr. Rudich (also proven); he would not give Dr. Rudich accurate information about whether Leora was taking her medications (not proven); and in the summer of 2004 and February 2005 Dr. Bezahler did not tell Dr. Rudich in 2004 that he had discontinued medication prescribed for Ian (not proven).
As the court's findings indicate, the plaintiff has proven some of her claims on this issue and has not done so on others. Much about which Dr. Rudich complains is not contempt of court, but disagreement between the parties as to Leora's condition. For example, during the six months in 2002 when the father had residential custody of Leora, Dr. Rudich became CT Page 14064-gh very concerned about Leora's weight and her psychiatric condition and frequently communicated her concerns to Dr. Bezahler. Dr. Rudich testified that Dr. Bezahler disagreed with her assessment of Leora's condition, would dismiss her concerns, and tell her that Leora was fine. There is no contempt of a court order for disagreeing with the other parent's assessment of a child's medical condition. Where Dr. Bezahler fell astray of the court's orders, and his obligation as a parent, was when he did not notify Dr. Rudich of those instances where he became aware of important information, developments and changes in Leora's medical status.
On certain occasions Dr. Bezahler did not directly inform Dr. Rudich of important medical or psychiatric information about Leora — information he acknowledged to be important, but instead relied on their daughter to do so. Although the agreement did not specify the method by which parents were to notify each other, and sometimes using a child to convey the information may be appropriate or sufficient, other times it may not be adequate or appropriate to do so. For example, there have been episodes when Leora cut herself, and both parents acknowledge this to be CT Page 14064-hi an important issue. In December 2003, Leora came back from a weekend with her father with cuts on her hand, which Dr. Rudich testified she learned about only by seeing her daughter's arm when Leora took off a jacket. Instead of telling Dr. Rudich directly about Leora's actions, Dr. Bezahler "told Leora that she needed to inform you of this behavior." "(See Pl. Ex. 34.) It was poor judgment to rely on the very person who engaged in the dangerous behavior to tell the parent. Perhaps, since Leora was then 15 years old, Dr. Bezahler believed he could trust her to tell her mother, but at least he should have checked in later with Dr. Rudich to see whether the child had complied.
The agreement specifically requires the parties to keep each other "informed of any developments . . . or changes" in the children's medical status. During certain periods when Leora was staying her father, Dr. Bezahler did not immediately notify Dr. Rudich of medical developments regarding Leora. In the summer 2004, Dr. Rudich became worried that Leora was not taking her medication and communicated her concern to Dr. Bezahler. For a long time, Dr. Bezahler thought that Leora was taking her medication, and that is what he told Dr. Rudich when she inquired. At some point, however, he became aware that she was not doing so. He made sure that her treating physician found out Leora was refusing to stay on her medications, but did not immediately notify Dr. Rudich. He also became aware that Leora was again cutting herself, and again talked to the doctor but did not immediately notify Dr. Rudich.
The parties agree that Leora has had a troubled adolescence. Her depression, eating disorder and self-mutilating behavior are dangerous, potentially fatally so, and threats to her immediate and long-term health. She has been hospitalized several times for these problems. Leora has had periods in which she is okay, and other periods in which she resumes dangerous behavior. Even when her conduct is not unsafe, her psychiatric condition is worrisome. Both parties acknowledge the recurring nature of her eating disorder and its effects on their daughter. The court is convinced, from hearing both parties testify, that each one believes he or she is acting in Leora's best interest. For a child with Leora's problems, it is in her best interest for her parents to agree on how to respond to Leora's condition, but they do not. Their communications with each other are sometimes rude or disrespectful. It appears to the court that the way they have responded to Leora's illnesses has become a battleground between the two.
Much of the conflict derives from the parties' different approaches to parenting. Dr. Rudich believes the children need her constant supervision and vigilance. Dr. Bezahler does not. Because she does not trust how he cares for the children, Dr. Rudich sends Dr. Bezahler numerous emails, even asking about matters that are within his area of decision-making when he has parenting time. Dr. Bezahler obviously finds her inquiries wearisome and annoying; sometimes he responds, and sometimes he does not. This pattern of poor communication has repeated itself in matters involving Leora's health, to that child's potential detriment. In view of the serious nature of her problems, Dr. Bezahler was obligated to look beyond the aggravation he felt from his dealings with his ex-wife, and provide her with timely and appropriate information about their daughter's health and behavior. He did not always do so, and a finding of contempt is appropriate for the proven instances of his failure to do so. This portion of the motion for contempt is thus granted in part and denied in part.
2. Plaintiff's claim that defendant did not provide her with CT Page 14064-gi proper contact information
Dr. Bezahler denies Dr. Rudich's complaint that he does not always provide her with telephone numbers and the addresses where the children will be when they take vacations or travel with him. For instance, in 2004, when he took the children on a skiing trip to a remote Canadian location, he learned when he got there that Dr. Rudich would not be able to reach the children or him by calling the telephone number for the facility, but she was able to talk with them on their cell phones, which he and the children all had with them. This claim was not proven.3. Plaintiff's claim that defendant failed to return children at proper times
The parties have long disputed the proper time for the father's pickup and drop-off time for his parenting weekend. Paragraph 2.1 of the parenting orders provides that during the school year the father will have parenting time on alternating weekends. Written in anticipation of the mother's relocation to New York, the orders state that "the children shall reside with the father in Connecticut in alternating weekends from Friday after school leaving for Cheshire." While the mother lived in Brooklyn, the children took a train from New York City to New Haven, where the father picked them up at approximately 6:30 p.m. Initially a chaperone accompanied them, but at some point Dr. Rudich decided to take them on the train herself. Paragraph 2.2 of the orders contains comparable provisions for the mother's weekend parenting time during the summers when the father is the children's residential custodian, except that her weekend time begins "Friday at noon or after their summer program day ends."
When Dr. Rudich moved back to Connecticut, she insisted that Dr. Bezahler's weekend parenting time should not begin until 6:30 p.m. on Fridays, despite the fact that the court orders say they "shall reside with the father . . . from Friday after school," because 6:30 was when he would first see them after their train trip when they were still living in Brooklyn. (Other paragraphs in the parenting orders specifically provide that the father's parenting time begins at 6:30 p.m. on Thursday before three-day weekends: "When the children have a Friday off from school, the father's weekend shall begin on Thursdays at 6:30 p.m. if the father is able to take time off from his work on Friday.")
The parties have also disagreed about when the father must return the children after long weekends or holidays. Paragraph 2.1 of the parenting orders provides that the father shall return the children after his weekend parenting time "Sunday at 6:30 p.m. back to the mother's house in CT Page 14064-gj New York" until Ian turns 10 years old, at which time "the children's return time shall be 8:00 p.m." Paragraph 2.3 of the parenting orders states that, when the father's parenting weekend contains a Monday school holiday, he will "return the children to the mother on Monday at 6:30 p.m. and that the children will spend Thanksgiving with him from after school on Wednesday until Friday at 6:30 p.m." Dr. Bezahler has maintained that the later return time for weekend visitations, 8:00 p.m. since Ian turned age 10, should also apply to his return time for the various holidays and vacations. Since the parenting orders do not include a change in return time for holiday visitations once Ian turned 10, unlike for the orders on weekend visitations, Dr. Rudich insisted that there be no change in holiday return times.
Dr. Rudich seeks a finding of contempt because in 2001 and 2002 Dr. Bezahler insisted on returning the children at 8:00 p.m. after his parenting weekend based on his interpretation of the parenting orders. The evidence showed, however, that though disagreeing with Dr. Rudich, Dr. Bezahler has acquiesced since then to her insistence that they be returned at 6:30 p.m. It is easy for the court to see why each party took the position it did on the pick-up and drop-off times, and although the court concludes that Dr. Bezahler is correct about when his parenting time should begin before regular weekends and Dr. Rudich is correct about when it should end after three-day weekends and holidays, this disagreement and the parties' conduct do not warrant a finding of contempt against either. It was a legitimate dispute, and the parties' behavior for a short period of time before they resolved how to handle the issue was not wilful disobedience by either of court orders. No contempt is found.
4. Plaintiff's claim that father does not exercise court-ordered parenting time
Dr. Rudich also complains that Dr. Bezahler does not always exercise his court-ordered parenting time on the weekend or during the week with his children. Moreover, she says, he often does not let her know whether he will do so until the last minute, as a result of which she says that she is unable to plan time for herself because she is never sure whether the children will need her supervision during the father's scheduled parenting time. Because Dr. Rudich believes that the children need her constant supervision, if their father leaves them at her house, she does not feel free to engage in personal pursuits. Dr. Bezahler explained at the hearing that he tries to accommodate the children's wishes and schedule in taking his parenting time. When they have had activities, homework, or social engagements and wanted to stay at their mother's, he has let them do so during his parenting time. He must sometimes wait to CT Page 14064-gk decide whether to take the children, however, because they do not let him know until the last minute whether they want to go to his house. And often, when he does decide not to take the children, he does not notify Dr. Rudich directly but lets them tell her. Although it is usually a bad idea to have children convey such information between parents, nothing in the judgment prohibits the father from doing so.
Dr. Rudich's claim of contempt here directly conflicts with her argument that Dr. Bezahler should be held in contempt for not planning Ian's summer to accommodate Ian's wishes. Parenting teenagers requires flexibility, as their schedules and lives often do not fit into the parameters of court-ordered visitation periods. Parents sometimes need to accommodate their parenting schedule to the wants and needs of their teenage children. That appears to be what happened here — Dr. Bezahler attempting to adjust his parenting time to the schedule, school demands, and social activities of his teenage children. It has worked a hardship for him — lost hours with his children — as well as for Dr. Rudich. Dr. Bezahler was not acting for the purpose of evading court orders; and although such a purpose or intent is not a requirement for a finding of civil contempt; DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 471 A.2d 638 (1984); under the facts of this case the court finds an adequate explanation for his conduct and declines to find any contempt.
5. Plaintiff's claim that father should be held in contempt because he "has failed to be at home or have a child care provider available"
Section 2.10 of the parenting orders states that "it is anticipated that each parent may employ child care providers to care for the children while the parent is employed" and requires each party to give the other "information on the child care providers and, if requested, an opportunity . . . to meet with the provider." In recent years, Dr. Bezahler has concluded that his children, now teenagers, do not need adult supervision or day care during their summer days when he is their residential custodian. Motion #191 claims, however, that the agreement requires him to use child care and that he should be held in contempt for not having child care providers.
Nothing in the agreement requires Dr. Bezahler to use daycare or babysitting, only to notify Dr. Rudich if he does so. To the extent that the mother's motion seeks a finding of contempt for the father's decision that their teenage children no longer need daycare or babysitting, the motion is denied. Since he was the residential parent in the summer, that decision was left to his sound discretion. CT Page 14064-gl
6. Plaintiff's claim that defendant disparages her in front of or to the children
The motion for contempt also claims that Dr. Bezahler disparages and shows disrespect for Dr. Rudich in front of their children. Paragraph 3.16 of the parenting orders provides that "[n]either party shall disparage the other party to the children." This is an important part of the court decree, for disparaging remarks by one parent in front of children about the other parent can have very damaging effect on the children. One obvious reason is that children need to feel safe and secure, and a child's belief that his or her parents can protect and take care of the child is an important ingredient in a child's sense of security and stability. When a parent disparages the other parent, or shows disrespect for the other parent in front of the child, such conduct can affect the child's own sense of well-being. Such remarks can also have the effect of undermining the child's relationship with his or her parent.
This court therefore takes very seriously an allegation that one parent is making disparaging remarks about the other in front of the children. Credible evidence about any such remarks in this case is, however, virtually nonexistent. Dr. Rudich testified that Dr. Bezahler sneers at her in front of the children, gives her "awful" looks that she perceives as denigrating, and makes fun of her hearing loss by enunciating well in front of her. She testified that one time he had a "vicious look on his face like he was going to . . . do something violent" while ringing her doorbell for a pickup on his parenting weekend. She complains that he will hand objects to the children to give to her — "like I have a disease" — and that this is disparaging conduct. As an example of her claim that he intimidates her in front of the children, she testified that he stood at one of Ian's baseball games "with his arms crossed scowling at me, looking at me like he wanted to kill me . . ." (T. 6/15/05, at 14.) Dr. Bezahler denies that he has acted in a disparaging way.
The evidence presented by Dr. Rudich is simply too subjective to support a finding of contempt, without some independent or objective evidence as to exactly what she is complaining about. She says he ignores her at the son's baseball games, but in light of the inability of these parties to get along or work together cooperatively, his conduct is probably a rational decision and the evidence does not establish contempt of court. She complains that he has let the children know that he disagrees with the mother's assessment of their medical condition, but this court cannot see how doing so, though poor judgment, is necessarily disparaging her. She testified that his bringing the children back on CT Page 14064-gm Monday holidays at 8:00 p.m. instead of 6:30, or bringing them back late, is disparaging of her because "it belittles me . . . and teaches . . . them to disregard me . . . What that does is teach the kids to disobey me or disrespect me . . ." ( Id., 16, 17.) She also said that "his ignoring me and ignoring the agreement is bullying to me because he uses my kids in the middle of it." Id. 24. In effect, she argues that the fact that these parties do not get along and that her ex-husband does not agree with her is the same as disparaging behavior. The evidence she offered did not prove her claim.
A scowl, a sneer, ignoring someone, or even crossed arms could be examples of disparaging conduct, or not. What would permit a court to find that such conduct was disparaging behavior, however, is missing here. There is no credible evidence of disparaging words or behavior in front of the children. There is no credible objective or independent evidence about the so-called "looks" Dr. Bezahler allegedly gave to Dr. Rudich. Instead, the court must rely on its assessment of the credibility and demeanor of the parties, and on this score the court finds Dr. Bezahler more credible than Dr. Rudich. Dr. Rudich also alleged that Dr. Bezahler has thrown objects on the ground in front of her, and if that were proven it could establish disparaging behavior. But here too the court finds Dr. Bezahler's denial of having done so more credible.
Dr. Rudich blames Dr. Bezahler's conduct for deterioration of her relationship with Leora and Ian. To prove this claim, she asks the court to draw inferences from the children's behavior. For example, she argues that "the father can be the only source of information about who pays for what." Hence, when Leora says to her "It is not fair that you decide about school but Dad pays" or "Dad pays you to take care of me," Dr. Rudich asserts that "the daughter is undoubtedly mimicking the father's attitudes when she talks about support payments and their fairness." When Leora tells Dr. Rudich that "You do nothing all day," or "You're the one who made me sick," the plaintiff argues that "the inconsistency between the mother's active role in the treatment of the daughter's illnesses, and the daughter's accusation that the mother `does nothing' tends to prove that the father was the outside source of the accusations." (Pl.'s Mem., ¶ 110, at p. 24.) Yet arguments between mothers and teenage daughters, even arguments where the daughter makes outrageous statements, are not so unusual that the court must infer the father as the source of those disputes. Similarly, the mother argues that their son is unwilling to hug her in his father's presence because "the father's behavior estranges the son's affections toward the mother." Id. But the court can also envision a child not wanting to get caught in warfare between his parents and who chooses not to show affection that he might fear would be seen by one or both parents as a sign of preference in CT Page 14064-gn their conflict. For both the son and daughter, Dr. Rudich asks the court to infer too much, at least without expert evidence that the father was the source of this behavior.
This aspect of her motion for contempt is thus denied.
C. Motion for Declaratory Ruling (#244) and Motions for Contempt regarding father's parenting time during the summer — #s 194-96
The plaintiff has filed several motions for contempt about the summers. Motion for contempt #194 claims that the father has improperly limited her summer parenting time by scheduling camp and other activities in a way that takes away her parenting time. This same claim is raised by her motion for declaratory ruling, which the court will also address here. Motion for contempt #195 asserts that Dr. Bezahler has not given her proper notice of the children's activities and schedule during the summer. Motion for contempt #196 claims that he violates the parenting orders by not providing the children with summer camp or other programs. The court will address these issues in turn.
The parenting orders have various provisions pertaining to summers that are relevant to these claims:
Paragraph 3.6 states that the father shall have decision making authority regarding the children's summer camp programs, summer activities, schedules, and summer health care providers.
Paragraph 2.6, captioned "summer activities," provides that [s]ubject to the parties' rights of vacation with the minor children, it shall be the responsibility of the father to research and prepare the children's summer camp schedule or other programs during the children's residency with him.
Paragraph 1.3 provides that "the father shall be in charge of planning for the children's summer activities, including any sleep-away camp. Therefore, both parties shall choose their summer vacation weeks after the camp schedule, if any, has been set."
Paragraph 2.4.h. states that the father shall be in charge of planning the summer activities of the children per paragraph 2.8 keeping in mind the vacation schedules of the parties.
CT Page 14064-go
Paragraph 2.6, captioned "summer activities," requires the father to notify the mother in writing by April 15 of each year "or as soon as possible given summer camp information," gives the mother seven days thereafter to respond to his proposed plan, the father three days after that to respond to any counter proposal the mother makes, and provides that if they cannot agree "the father shall have the final decision making authority." It specifically provides that the father shall not plan, however, without the express consent of the mother, any activities that interfere with the every other weekend residence schedule or the Thursday afternoon visit.
Paragraph 2.4.h., captioned "Summer Vacations," gives each parent 14 days of vacation time with the children during the summer and directs the parties to "inform each other by May 15th of each year as to the week(s) he or she will be taking during the summer." In even-numbered years, the father has "first choice for his block of time followed by the mother's choice of her block of time," and vice-versa in odd-numbered years.
Paragraph 2.5., titled "Conflict in Schedule," provides that if there is a conflict between the residency schedule and holiday and vacation schedule, the holiday and vacation schedule shall control, except as provided in paragraphs 2.3 [regarding Monday and Friday holidays] and 2.4e [regarding major Jewish holidays].
Dr. Rudich claims that Dr. Bezahler schedules summer camps in a way that improperly deprives her of weekend parenting time. In the summers of 2003 and 2004, Ian attended two week-long summer camps and the father arranged for Ian to stay at the camp on the weekend between the two camps during time that would otherwise have been the mother's parenting time. The mother claims that this violates the provisions in paragraph 2.6 that prohibit the father from scheduling "activities that interfere with the other weekend residence schedule," whereas the father says that his authority under the parenting orders to schedule summer camps allows him to schedule additional time at camps during the intervals between formal camp sessions. CT Page 14064-gp
The orders provide that Dr. Bezahler may not schedule "activities" in the summer that interfere with the mother's Thursday or weekend parenting time, but also give him authority to schedule summer sleep-away camps. Dr. Rudich claims that Dr. Bezahler is in contempt of the parenting orders by scheduling summer camps since 2003 that affected her parenting time without her permission. Dr. Rudich takes the position that "camp is . . . simply . . . a subset of summer activities" (Pl.'s Post-Trial Mem., ¶ 124, at p. 28) and that the father cannot schedule camps that intrude into her summer parenting time without her permission.
The plaintiff had an opportunity to raise this issue in 2004, when the parties appeared for a hearing on certain motions before Judge Gilardi on July 1. One of the issues being addressed that day was the summer schedule. Midway through the hearing, the court defined the summer schedule issue as "it boils down to whether the father can schedule a camp at a time that interferes with the visitation schedule of the mother." (T. 172.) The court noted that the plaintiff had said she didn't "want to interfere with the schedule this summer" but wanted "compensatory time" to make up for days she was losing because of weekends between summer camps ( Id., 177). The court refused to order comp time because "this is too late in the game" to do so. Id. 229. Thus, plaintiff had an opportunity that year to seek a court order overturning the summer camp schedule but did not pursue such a claim there, and not having pursued such a claim then, cannot be permitted to complain now that the schedule that summer violated her rights. Her decision not to challenge the schedule itself, but to seek court-ordered compensatory time, can be construed as consent to the children attending summer camp.
The parenting orders set up a schedule for Dr. Bezahler to propose the summer camp schedule and for the mother to respond with her suggestions, and then give him the final "decision making authority regarding the children's summer camp programs" (though "[s]ubject to the parties' rights of vacation with the minor children.") A sleep-over camp will necessarily deprive the mother of at least her midweek Thursday visitation with the children and perhaps also weekend parenting time if the camp is for multiple weeks. Parenting orders that the parties consult about summer camp but give the father final say would be meaningless if the mother could veto the summer camp schedule by refusing to consent to loss of her midweek or weekend parenting time. The court thus concludes that the parenting orders give the father authority to schedule summer sleep-over camps during time that mother would otherwise have parenting time during the summers and without her permission. When the children are not away at camp, however, activities that he schedules for the children cannot intrude on her parenting time without her consent.
The question is, then, whether these intervening weekends on which Dr. Bezahler scheduled Ian to stay at camp, rather than come home for weekend parenting time with Dr. Rudich, should be considered "camp," such that the father is allowed to schedule them even if they prevent the mother from having parenting time, or are "activities" that he cannot schedule in such a way. This is not an easy question, and there are valid arguments to be made for both sides. Plaintiff's exhibit 65, a brochure for one of the camps Ian has attended, has a section on "campers staying two or more weeks" that says campers would get a meal, admission to a movie on Friday and to different attractions on Saturdays. On balance, the court concludes that these "in-between" weekends are more like camp than "activities." Ian does them while at camp, just not as part of the formal camp week. The camp continues to provide him with meals and lodging and to be responsible for his supervision. The baseball games Ian attended were related in interest to the baseball camp he attended. Motion for contempt #194 is therefore denied. Plaintiff's Motion for a Declaratory CT Page 14064-gq Ruling, Post-Judgment (file #244) also complains that the father schedules his vacation time in a way that reduces her weekend and Thursday visitation during the summer. Yet the judgment specifically provides that the vacation schedule trumps the residency schedule. The motion for Declaratory Ruling is thus denied, in light of the court's order here clarifying the judgment. Summer camps and vacations override regular parenting time, but other activities do not.
Plaintiff's motion for contempt #195 claims that the father has not given the mother required notice of the children's summer schedule in a timely manner. It is true that he has not always given her the schedule by April 15th, but many times the reason is that the children's summer camp schedule was not yet set. The parenting orders specifically provide that Dr. Bezahler must give Dr. Rudich the summer camp schedule "by April 15 of each year or as soon as possible given summer camp information." As Ian became older and he stopped going to long sleep-away camps and became involved in summer baseball activities at home, it became even harder to finalize his schedule by the April 15 deadline, because the summer baseball schedule changes often, with dates and times for practices, games and tournaments frequently changing. The court finds Dr. Bezahler's testimony credible that the reason he has not always complied with the April 15 deadline is because the children's summer camp schedules and Ian's summer baseball schedule were not yet set. This motion is also denied.
Plaintiff's motion for contempt #196 claims that the parenting orders oblige the father to schedule summer camp and activities for the children, and that his failure in recent summers to do so violates those orders:
The father has routinely chosen not to schedule summer activities for the children for either the entire summer break or for a large proportion of the summer break and states that the Agreement provides for his right to do that. Paragraph 2.8 states the father's affirmative responsibility to plan summer camp, programs, and activities, rather than the right to provide unlimited unscheduled time for the children, as he claims.
Pl.'s Post-Trial Mem., ¶ 120, at p. 27. She also asserts that Dr. Bezahler has failed to schedule Ian's summer to accommodate Ian's preferences or his doctor's recommendations. Section 2.8 of the parenting orders does require the parties to consider children's preferences in planning the summer schedule; but the orders give Dr. Bezahler final CT Page 14064-gr decision-making authority for the children's summer schedules, and do not require any specific plan for the summer. The parenting orders for the father do not require Dr. Bezahler to fill the children's summer with activities; and, if he deems it in their best interest for them to have free time rather myriads of activities, that is in his discretion as the custodial parent for the summers. This motion is denied.
D. Motions for Contempt #192 and 252 — Plaintiff's claim that defendant has not paid required tuition payments and summer expenses 1. Tuition paymentsParagraph 5.1 of the separation agreement requires Dr. Bezahler to pay "the basic cost of . . . tuition, when due . . ." Dr. Rudich has complete control to decide the children's secondary school education. When the marriage of the parties was dissolved, each child's tuition cost approximately $9,000 per year. Dr. Bezahler paid that amount plus other school-related expenses until 2003, when tuition alone for each child began exceeding $18,000. Since then, he has limited his annual contribution for each child's private school education to that amount. As a result, Dr. Rudich has had to pay the balance. She claims that his obligation to pay "tuition" also requires him to pay educational expenses such as activity fees, books, and travel that is recommended or required by the children's schools. Her attorney thus argued during the hearing that
the term tuition, as used in this dissolution decree, should be interpreted broadly, because the decree provides for the maintenance of the children. And in order to decide whether the expenses are tuition, in nature, the court has to decide whether the expenses are a necessary part of the overall education of the child . . . [O]ther educational expenses are being incurred beyond just the narrow definition of tuition and the two children cannot attend the schools without these other expenses being paid. They are necessary expenses.
Even if the court accepted this argument, however, Dr. Bezahler's financial obligation each year toward the children's private school education is capped at $18,000. There can be no contempt for unwillingness to pay more than the judgment requires.
The evidence also established that the first tuition payment for the CT Page 14064-gs children's secondary school educations is usually due in the preceding spring or summer. For the current academic year, and in certain previous years, Dr. Bezahler has not made that first payment. His reason is understandable: one year Dr. Rudich signed the children up for a private school in New York, he made the required tuition payment, and then she withdrew them from that school and moved back to Connecticut. Under later court orders the parents split the un-refunded portion of that tuition. The evidence showed that last spring Leora was ambivalent about whether she wanted to return to Cheshire Academy for the school year 2005-2006 or attend public high school. Her mother had re-enrolled her in private school for her senior year, but when questioned on the witness stand during the spring about whether Leora was definitely going to attend the private school this academic year, Dr. Rudich was evasive. She said that Leora had a spot "reserved" for the following school year, and that the first tuition payment was due, but did not commit about whether Leora was definitely going to attend. She admitted during testimony on April 20 that she had not yet formally enrolled Leora in Cheshire Academy for the 2005-2006 academic year or signed the enrollment form herself because she was concerned that Leora might not go there and she did not want to assume contractual liability for tuition for next year. It was obviously uncertain whether Leora was actually going to attend private school or public school for her senior year. (The court is unaware of how or when the final decision was made, but evidence offered this fall shows that Leora is again attending the private school this year.)
Dr. Bezahler thus feels, with some justification, that there is a risk of the mother enrolling one or both children in a private school that the child may not attend. In recent years, moreover, the tuition costs for each child attending private school have exceeded his obligation, and thus Dr. Rudich has also had to pay a portion of the tuition, books and fees. He has always paid the $18,000 that is his portion of each child's private school tuition. In view of the history between the parties and of the children's private school history and the fact that Dr. Rudich herself has to pay a portion of the tuition, the court does not find Dr. Bezahler in contempt. This aspect of Motions #192 and 252 is denied.
2. Summer camp expenses
The judgment makes Dr. Bezahler responsible for summer camp expenses but also gives him final authority to decide which camps Leora and Ian will attend. In two summers, the mother wanted Ian to attend a one-week baseball camp that was not on the father's final list of camps he had selected for the children, one summer during only the mother's parenting time and the other summer partially during his time also. In both instances, Dr. Bezahler agreed Ian could go only if Dr. Rudich agreed to CT Page 14064-gt pay for the camp, and she did so. She now claims that he should be held in contempt for not paying for the camps.
Nothing in the orders requires Dr. Bezahler to consent to the camp. Although the parenting orders describe each parent's periods of exclusive parenting time during the summer as "vacation time," these "vacations" are essentially periods of the summer when each parent has exclusive parenting time, without the other party having any visitation. During the non-custodial parent's exclusive time, that parent has the right to select the child's activities. If the mother decides to send Ian to a camp on her own parenting time, Dr. Bezahler's right of final decision-making about camps does not give him a veto about a camp during her weeks of exclusive parenting time. Here, however, he did agree that Ian could attend, only on the condition that the mother would pay. The court does not believe it appropriate, in the circumstances of this case, to hold Dr. Bezahler in contempt of a court order for conduct undertaken by agreement of both parties. But the judgment does require him to pay for summer camp expenses, and he is ordered to reimburse Dr. Rudich what she paid for those camps within thirty days.
This case does not present the question of whether Dr. Bezahler CT Page 14064-hj would be required to pay for summer camp expenses if the mother sent one or both children to camp during her parenting time without his permission. When he agreed Ian could attend, he in effect amended the summer camp schedule — or, in the words of the parenting orders, agreed to accept the mother's counter-proposal about camp. Under the judgment, he was then responsible to pay for the camp.
3. Summer baseball league
Dr. Rudich also seeks a finding of contempt because Dr. Bezahler only paid for half of the $1,450 cost for a baseball league that Ian played in during summer of 2005. Ian started attending practices for his team during the school year, but all games were played during the summer. Dr. Bezahler paid for only half of the summer league expenses because Ian spent a lot of his time in this activity before the summer began. His decision seems rational and plaintiff has not pointed to any specific court order it violates. This aspect of the motion for contempt is thus denied.
E. Motion for Contempt #193 re summer care providers
This motion asks to have the defendant found in contempt because he did not comply with § 2.10 of the parenting orders requiring him to notify Dr. Rudich of who will care for the children and to give her an opportunity to meet with the child care provider. Dr. Rudich testified that in the year 2000 she did not get notice of the children's daytime babysitter for the summer until May; that in 2002 Dr. Bezahler only gave her two weeks notice of the name of the babysitter and did not give her an opportunity to meet with the sitter; that in 2003 that he did not tell her until just before the summer began that his mother would be providing daytime care and that his mother refused to meet with her; and that in 2004 and 2005 he said the children no longer needed babysitters. For CT Page 14064-gu these latter two years she complains that he has refused to identify who would drive the children during the day.
Quoted, infra, p. 16.
The court finds that the mother received the required notice and had the required opportunity to meet with the sitter in 2000; and there is insufficient proof that she did not get an opportunity to meet with the sitter in 2002. Since she knew who the sitter was for the summer 2003 — Dr. Bezahler's mother, there was less need to meet with her than with an unknown babysitter; still, providing Dr. Rudich with an opportunity to meet with the sitter was a court order, and if Dr. Bezahler was going to use his mother, then he should have ensured that Dr. Rudich had the opportunity to meet with her and for Dr. Rudich to discuss her concerns about the children with the paternal grandmother. But since there was no evidence that Dr. Rudich ever complained to Dr. Bezahler that his mother was refusing to meet with her or that he was aware of that fact, the court cannot find wilful disobedience of the court orders on his part. This aspect of the motion is denied.
It was proven, however, that Dr. Bezahler did not always tell Dr. Rudich who would drive the children during the summers. The parenting orders had a specific exception for "occasional babysitters" from the requirement that the parties provide information about child care providers. A driver is not necessarily a child care provider, however. Were these drivers more like occasional babysitters or more like child care providers? The evidence did not provide enough information for the court to make a finding. Moreover, the agreement did not specify that he tell her who would be driving the children (though it clearly would have been preferable for him to do so). In view of the high degree of detail in the parenting agreement, the court does not find wilful contempt on the father's part for not giving the mother this information. This aspect of the motion is also denied.
F. Motion for Contempt and Sanctions (# 200)
This motion claims that the defendant should be held in contempt or sanctioned for not coming to court until 2:30 on two occasions when he was subpoenaed to appear at 9:30 a.m. Her motion says that each time Dr. Bezahler claimed that he was "engaged in his employment when he was supposed to be in court." On the second occasion, he called plaintiff's counsel the day before and notified her that he would be late. Plaintiff had an opportunity to seek a remedy then by way of capias to enforce the subpoena and did not do so. The court will not find contempt for being late to court under the circumstances presented here. Moreover, insufficient information was presented to warrant any sanctions. CT Page 14064-gv
It is well-settled law in Connecticut that the determination of whether to impose sanctions is a "discretionary action of the trial court . . ." Millbrook Owners Assn. v. Hamilton Standard, 257 Conn. 1, 15, 776 A.2d 1115 (2001). "[T]rial courts have the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated." Id., 9-10. The court should "regard a sanctions order against an attorney as having both a compensatory and a deterrent purpose. It is designed both to compensate the adversarial side for its expenses in defending against the bad faith litigation conduct, and to deter the offending attorney from repeating his misconduct by requiring him to make that compensation." CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 402, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999).
Savitt v. Condon Olderman Realty, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV01 073254 (Holden, J., October 31, 2002) ( 33 Conn. L. Rptr. 325). There is no evidence of bad faith, dilatory, or harassing tactics. The request for sanctions is denied.
G. Plaintiff's Motions for Sanctions #s 202, 206 and 213 1. Motion #202
Motion #202 seeks sanctions against the defendant for filing and pursuing a motion to dismiss certain post-judgment motions on the grounds they had not been served on him in accordance with General Statutes § 52-50 (although copies had been mailed to his counsel). The court denied the motion. The plaintiff has not presented legal authority that defendant's motion was completely frivolous, wholly without merit or made in bad faith. The motion is denied.
2. Motion #206
Motion #206 seeks sanctions on the grounds that "defendant and his counsel have delayed" a certain hearing. No evidence was presented that either the defendant or his attorney acted in a way that would warrant sanctions. The motion is denied. CT Page 14064-gw
3. Motion #213
Motion #213 seeks sanctions for "conduct directed against the rights of the Plaintiff and . . . against the dignity and authority of the court." In support of the motion, plaintiff attached an unsigned five-page affidavit from her attorney alleging frivolous motions by defendant and various difficulties in scheduling and obtaining the defendant's attendance at a hearing filed by plaintiff. Even had the affidavit been signed, however, the facts averred therein would not support an award of sanctions. Much of the affidavit essentially relates the difficulties inherent in the scheduling of cases, particularly during the months of June through August.
The court notes that the copy of this motion in the court file is obviously a xerox copy and not the original. For purposes of this motion, the court will give plaintiff the benefit of the doubt and assume that her attorney did sign and file an original of the affidavit.
The "affidavit" also states that defendant's counsel "intentionally withheld information from the court that was relevant to the scheduling of this matter." This is an extremely serious allegation that, if true, might warrant disciplinary action against counsel; cf. Daniels v. Alander, 268 Conn. 320, 844 A.2d 182 (2004); as well as financial sanctions. The affidavit of her attorney alleges as follows:
45. On June 16, 2004, the court sent counsel to case flow to inquire about other possible dates besides July 1.
46. Case flow confirmed no date would be definitely available until October though some possible dates for trial might become free on July 6 and July 19 if the cases settled.
47. I inquired if case flow could pursue those dates further so we could learn if they might be available and I was told that was not possible.
48. I reported to the Court that no date until October would be definitely available after July 1 — precisely as case flow told me.
49. Attorney Donini and Attorney Amendola contradicted my report stating that after I left case flow had learned July 6 would be available.
50. I pursued the matter with case flow to learn why I had not been informed of that information and was told that both July 6 and 19 were both possibilities CT Page 14064-gx but that Attorney Amendola had not wanted it to be July 19.
51. Attorney Amendola and Attorney Donini intentionally withheld information from the court that was relevant to the scheduling of this matter.
Essentially, plaintiff claims that defendant's attorneys were told by case flow that July 6 and 19 were available as hearing dates but falsely represented to the court that only July 6 was available and omitted the fact that July 19 was available. While an attorney's duty of advocacy for the client permits counsel to "use legal procedure for the fullest benefit of the client's cause," counsel has a corresponding duty "not to abuse legal procedure." Commentary, Rules of Professional Conduct, 3.1. Counsel's duty of candor to the tribunal; Rules of Professional Conduct 3.3; includes the responsibility not to mislead the court intentionally, either directly or by omission, in representations to the court. No transcript of counsel's actual remarks was introduced into evidence during the hearing. In discussing scheduling with the court, it is not unusual for counsel to refer to their own schedule as their "availability." Without an actual transcript of the court proceedings, this court cannot find improper conducting warranting sanctions. The motion is denied.
H. Defendant's Motion for Contempt #208
In this motion Dr. Bezahler raises the converse of the claim made by Dr. Rudich in motion for contempt #191, in which she claimed the father often brought the children back at 8:00, instead of 6:30 p.m. after long weekends. As noted above, each party's position has some validity. But there is a valid reason why the parenting orders might have permitted a later return on normal weekends, but mandated an earlier return after an extended weekend. After longer periods with their father, the children might need a little more time to settle into the routine at their mother's. The specific language of the agreement extended the return time to 8:00 p.m. only for regular weekends. There was no contempt on Dr. Rudich's part for insisting on the 6:30 return after longer weekends. The father's motion is denied.
III — MOTIONS TO MODIFY FINANCIAL ORDERS (#s 170, 173, 176, 221, 236, 241, 260, 263, AND 268)
Under the current orders, Dr. Bezahler pays child support of $20,000 per child per year, summer camp expenses, and school tuition up to $18,000 per year per child. The plaintiff's motion for modification #241 seeks an CT Page 14064-gy order that child support be modified to a flat sum of $75,000 per year, not to be reduced (or reduced only minimally) when Leora has turned 18 and graduated from secondary school. In motions number 170, 173, 176, and 236, she also asks that Dr. Bezahler be required to pay the full cost of each child's private secondary education, including charges for books, fees, required travel, and other necessary expenses, while remaining responsible for all summer camp expenses as under the present order. In July of this year, Dr. Bezahler filed a motion to modify the financial and custodial orders in which he agreed to pay the full cost of private secondary school but opposed Dr. Rudich's request for an increase in child support. Instead, he proposed that he continue to pay $20,000 per year child support for Ian, and he made no claim for child support from Dr. Rudich for Leora.
In plaintiff's "Application to Reopen Judgment and for Modification of Custody and Visitation Post-Judgment," motion #170, she makes a general request for changes in orders regarding custody, visitation, and other related issues including financial issues. As discussed above, the court's scheduling orders on November 11, 2004, and February 24, 2005, required the parties to file summaries of their claims and ordered that any issues not identified in those submissions would be deemed abandoned. The court's orders required the parties to identify the specific relief being sought. The plaintiff filed two such submissions, one dated November 16, 2004 and captioned "Summary of Plaintiff's Outstanding Issues," and the other dated January 20, 2005, and captioned "Revised Summary of Plaintiff's Outstanding Issues." With regard to motion #170, plaintiff stated in those two submissions that she sought the following: modification of child support to $75,000 per year, payment of all summer camp and private school costs, and no (or nominal) reduction of child support when Leora was no longer eligible for support. Despite the general nature of the requested relief in motion #170, plaintiff has thus limited her requests for relief under that motion to what she listed in the submissions made pursuant to the court's scheduling orders. The only other financial issue either submission identified as pending was a request from plaintiff that "psycho-educational expenses" be deemed necessary medical expenses. Although Dr. Rudich and her attorney have repeatedly told the court that the plaintiff seeks an order requiring Dr. Bezahler to pay for such expenses, no motion before the court seeks such an order, and hence the court will not address this request. (Although motion #176 asserts that "psycho educational recommendations . . . made for the minor children" are one of the substantial changes in circumstances, along with increased costs in tuition, warranting modification of financial orders, the only relief sought by that motion was for "the judgment [to] be opened and modified regarding the orders of payment of tuition for the minor CT Page 14064-hk children.")
Motion #173, captioned "Plaintiff's Motion for Contempt for Past Due Court Ordered Payments in the Amount of $31,778.38 Post Judgment," seeks counsel fees for the father's alleged failure to provide certain documentation showing that life insurance policies were in effect, to "provide trust information" to the mother, to pay for academic programs for the children, and to pay certain health and medical expenses. That motion was filed January 23, 2004. On March 10, 2004, the court, Kenefick, J., approved a written agreement of the parties that "[a]s full and final settlement of all claims by the plaintiff to be due her from the defendant as his contribution for medical expenses, health insurance premiums, summer school tuition, and transportation to and from Silver Hills as of December 28, 2003, the defendant shall pay to the plaintiff the sum of $25,000." The order also required defendant to furnish plaintiff all documentation regarding "required life insurance" and the custodial account and trust information required by paragraph 11.1 of the Separation Agreement by April 1, 2004. After defendant provided disclosures pursuant to that order, the plaintiff learned that he was not complying with certain aspects of the judgment's orders regarding life insurance, and Judge Gilardi subsequently held him in contempt as a result. The court awarded plaintiff counsel fees of $2,000 for the contempt on the court-ordered life insurance policy. See order #227, filed August 31, 2004. This court will not address any claim for counsel fees related to the matters resolved by the March 10, 2004, orders or by Judge Gilardi. The time of March 2004 order would have been the occasion to seek counsel fees for the matters addressed in that order. In agreeing that the father's agreement to pay $25,000 was "full and final settlement" of all the claims addressed by that order, plaintiff forsook any claim for further financial orders against defendant related to those claims. Judge Gilardi's award of counsel fees was a final decision as to the matters he addressed. Thus, this court will only consider counsel fee claims for conduct occurring after March 10, 2004, and not addressed by Judge Gilardi.
In motion #176, "Motion to Amend Plaintiff's January 15, 2004, Application to Reopen Judgment and for Modification of Custody and Visitation Post Judgment," plaintiff added claims to modify the financial orders to require the father to pay the full cost of tuition.
Plaintiff's "Motion to Amend Plaintiff's Application to Reopen Judgment and for Modification of Financial Issues," #236, filed November 22, 2004, clarifies "that the orders be modified to include all required curriculum related costs for the minor children's education." CT Page 14064-hl
In motion #241, dated January 6, 2005, plaintiff also requested a penalty of $500 per day if defendant were late in paying his support obligations. She did not identify such a penalty as among the relief being sought in her revised summary of issues filed two weeks later, and, pursuant to the scheduling orders, is deemed to have abandoned this request. Moreover, the court found no evidence warranting such.
Dr. Rudich is currently unemployed and has no earned income. She has not practiced medicine in more than ten years, in part because of a hearing impairment that she claims has limited her ability to perform some of the functions required of a physician, but also in large part because she believes her children need her attention. She testified that she did not pursue a psychiatric residency program into which she was accepted — and which was one reason she says she moved back to Connecticut from New York City — because she believes that their children have "special needs which require my attention, my vigilance and especially my daughter has required virtually one-on-one care." (T. 11/18/04, at 7.)
I would not have the flexibility to do the residency and do my primary job which was taking care of my children. It had not been as clear when I accepted the position the needs that my children would continue to have.
(T., 11/30/04, at 48.) She also testified that, although she had once worked for a drug company, she could not accept such work now because
drug companies require travel, being at meetings at night, being available for deadlines, being available in the afternoons and evenings when my children need my care it would be impossible to take care of them.
Id., 49.
Her sole sources of support are her husband, an attorney who works in New York City and lives there during the week, and income from the assets she received at the time of dissolution from the defendant here. Her most CT Page 14064-hz recent financial affidavit submitted in August 2005, listed her only income as $52 gross and net weekly from interest and dividends and lists assets worth $795,189 (not including custodial accounts held for the children of $91,966); she claimed weekly expenses of $5,220, which included a projection of $1,559 in weekly expenses for Ian if she is awarded year-round residential custody of him. Her last affidavit before that, dated March 7, 2005, listed $56 gross and net weekly income from interest and dividends, weekly expenses of $5,162 (which included children's expenses for Leora and Ian of $1,842), and assets of $821,473.
She detailed her projected expenses for Ian on a separate schedule, broken into these major categories: Housing, which she described as half the cost of her basic household expenses, of $549 per week; recurring weekly medical expenses of $159; educational expenses, primarily tuition not paid under the current order by Dr. Bezahler, of $129 per week; and all other expenses, ranging from clothing and haircuts to gifts, books and magazines, television, to summer activities.
Dr. Bezahler is still the sole owner of the ophthalmology practice awarded him in the dissolution. His last financial affidavit (dated April 25, 2005) listed him as earning gross earned income there of almost $49,000 per month. The affidavit also listed an additional $3,000 monthly income from interest and dividends and stated his net monthly income to be almost $32,000. This is a substantial increase from his earned income at the time of dissolution, when his financial affidavit listed earnings of $21,329 gross and $11,188 net per month. His 2004 federal income tax return listed gross taxable income of $602,192, plus $18,814 in tax-exempt interest; it also claimed tax-deductible business expenses of more than $7,000 for depreciation, gasoline, repairs and other expenses for his 2003 Mercedes Benz, which he bought for $90,000 in cash in 2003. His ophthalmology practice pays the full cost of his automobile, life, health, and disability insurance. His most recent financial affidavit, on April 25, 2005, listed assets worth slightly more than $1.4 million, but did not assign specific value to his medical practice. His most recent financial affidavit listed expenses each month of $8,617 plus court-ordered tuition and child support, for total monthly expenses of $15,136.
Obviously, the combined net income of these parties takes them outside the child support guidelines. The Preamble to the Child Support and Arrearage Guidelines states that "above the highest income level in the schedule, courts remain free to fashion appropriate child support awards on a case-by-case basis, provided the amount of support proscribed at the $4,000 level is presumed to be the minimum that should be ordered." Preamble to the Child Support and Arrearage Guidelines, Section (e)(6). For families with combined net income of $4,000 per week, the basic child support obligation is $473 for one child and $636 for two children ($24,596 and $33,072 per year respectively).
One underlying premise of Dr. Rudich's request for an almost fourfold increase in child support is that the disparate incomes of the parties warrant such an order. She couches this in several ways: the court should CT Page 14064-ha consider the various statutory factors, the lifestyle she has established for the children, and the children's educational status and expectations. A second premise is that the court should accept her portrayal of herself as unable to work gainfully to support the children financially and instead ought to place most of the financial burden for doing so on the father. In the affidavit submitted into evidence, she asserted that she had depleted 45% of the "net liquid assets" awarded to her at the time of the dissolution in order to support her children. A third premise is that these two children have such dire problems as to require her constant supervision and guidance.
Section 46b-84 of the General Statutes provides, in relevant part as follows: "(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance . . . (d) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child."
An appropriate factor for determining the amount of child support is the need of a child for a parent at home. Some children, even teenagers, need full-time care and supervision. At the time of the dissolution, Ian and Leora were 8 and 11 years old, ages when the parties might have deemed it advisable that Dr. Rudich stay at home for them after school or available to them during the school day. Despite Dr. Rudich's insistence about her children's need for her now, however, the evidence does not establish that she cannot at present work full-time and meet those needs. On this issue, the court essentially had to weigh the credibility of the two parties. Dr. Rudich testified that the children need her full-time care. Dr. Bezahler testified that they do not need full-time supervision — he often leaves them by themselves during the day now. Dr. Rudich vigorously disputed the wisdom of his doing so — claiming, in effect, that Dr. Bezahler's approach to parenting led to the worsening of Leora's medical and psychiatric problems when he was her custodial parent in 2002.
Leora does, or did, anyway, have serious problems — depression, the cutting behavior, and her eating disorder. She has been hospitalized several times. But there was no credible evidence how or why Leora might need her mother at home all day during the school week, either before custody was transferred to Dr. Bezahler or since then. In their testimony, both parties appeared sincere and dedicated to their children's well-being. They simply differed on their view of the children's needs and how to respond to those needs. Dr. Rudich's testimony that if Leora were left alone, she would just sleep all day, might, if credited, support the mother's testimony; but the court finds itself unable to resolve the conflict between the parties' testimony on this point without independent and objective evidence as to Leora's needs. As for Ian, a doctor's letter of May 10, 2004, entered into evidence states that he was then displaying "increased difficulty with homework completion and behavioral resistance to task completion" but the only treatment recommendation was for a tutor (Pl.'s ex. 1) that plaintiff admits he is not now using. Both these children are in their CT Page 14064-hb teenage years — Ian is 14 and Leora 18. No need has been proven that would prevent their mother from pursuing gainful employment, as her enrolling in law school for a part-time course of study this fall confirms.
Dr. Rudich submitted into evidence letters from her audiologist that her hearing, when aided by programmable behind-the-ear hearing aids, "is very good" although she "will have some difficulties understanding speech, especially in situations with background noise." Her word recognition is somewhat reduced even in ideal quiet settings. Even if she can no longer use a stethoscope, she did not establish that she cannot perform any jobs requiring a physician's training and license. She offered no credible reason why she could not have begun retraining, even if that is necessary, much earlier than the fall of 2005. The court thus rejects as unproven her claims that she is unable to work, either because of her own disabilities or because of the children's needs, and without earning capacity.
Obviously the parties have significantly different incomes. That was true at the time of the divorce as well, when the plaintiff's financial affidavit showed no prospective income while the defendant's listed $11,408 net per month. The parties then thought it fair for the father to pay child support of $20,000 per year per child and for private school tuition up to $18,000 per child per year. Since the children's annual private school tuition costs were then approximately $9,000 per child, the $18,000 figure covered all private school expenses; but it no longer does and Dr. Rudich has paid the balance of tuition plus the children's other academic expenses. For the current academic year, tuition at Hopkins, which Ian attends, is $24,400, and is $24,675 at Cheshire Academy, where Leora is in school. Until tuition exceeded $18,000 per child per year, Dr. Bezahler also paid for other academic expenses. The mother's affidavit states that she has had to pay "$3,900 in basic tuition for the academic year 2003-2004 and $14,436 in tuition and mandatory fees and necessary expenses for the academic year 2004-2005."
The plaintiff's financial affidavit at the time of the dissolution listed weekly expenses of $2,580, which included $574 for the children, and in her financial affidavit of March 7, 2005, she claimed $5,162 in weekly expenses, of which $1,842 were related to the children while both were living with her. The court has reviewed the plaintiff's itemization of children's expenses attached to her various recent financial affidavits and does not find it credible. She testified, for example, that she is required to buy each child a new computer each year because of "obsolescence." That is not believable, and casts doubt on the credibility of her other claims about other expenses. Of the $1,842, $342 CT Page 14064-hc per week are educational expenses that the defendant has agreed to pay. Her August 2005 financial affidavit included projected expenses for Ian of $67 per week for summer activities and camp, some portion of which the court's orders assign to the father. Moreover, the expense portion of her August 2005 financial affidavit listed $1,750 per week in legal fees, and the liability portion states that she owes her attorney a balance of $35,000. (Her March 2005 financial affidavit listed weekly legal expenses of $1,519 and counsel fee liabilities estimated at $30,000, on which she claimed to pay $600 per week.) Much of these legal fees would have been recoverable from the defendant had more of her contempt claims been meritorious. The court has carefully considered Dr. Rudich's testimony and sworn affidavits concerning her expenses, her demeanor on the witness stand and her credibility in light of all the evidence and does not find her claims about her expenses made on her financial affidavits and in her testimony to be credible. Her actual expenses are quite hard to ascertain. They may have increased since the dissolution, but by how much the evidence does not prove. The defendant's expenses have gone up since the time of the dissolution, from $8,859 to $15,136 per month before Leora went to live with him. (This amount includes his child support and tuition obligations.) The evidence shows that the parties incur substantial medical expenses for the children, in amounts significantly more than at the time of the dissolution.
Where there is a split custody situation, as in the present case, the methodology for calculating child support under the child support guidelines is to determine the child support each parent would owe the other and then net out the difference. See Preamble to the Child Support and Arrearage Guidelines, Section (g)(a). Although the guidelines are not controlling here because of the parties' combined net income level, that methodology would also seem to make sense for split custody situations when the parties' joint net income is above $4,000. The guidelines recognize that doing so may be inequitable, however, if the custodial parent has much greater income than the non-custodial parent as is true here for purposes of calculating support due for Leora. See Regs., Conn. State Agen., § 46b-215a-3(b)(6)(B). Moreover, although the court has found that the mother can work and has an earning capacity, it is hard to put a specific figure on her earning ability. Minimum wage would not accurately reflect her superior intelligence, her educational level, or her vocational potential.
In light of all evidence and information presented here, the court orders that plaintiff's motions numbered 170, 173, 176, and 236 and defendant's motions numbered 260, 263, and 268 with regard to financial matters are granted in part and denied in part, and the judgment modified as follows. In making these orders, the court has fully considered the CT Page 14064-hd parties' financial affidavits, all the evidence and information offered the court during the hearing, the briefs and arguments of the parties, all the statutory factors, and the court's findings recited herein.
(1) The father shall pay the mother child support in the amount of $27,000 per year until Ian turns 18 or has graduated from high school, whichever occurs later, but in no event after his 19th birthday without the father's written consent or further court order.
(2) The father shall pay for all the costs of the children's private secondary school education in the United States, including tuition, mandatory curriculum-related costs, required fees, required books, and other required expenses. The parties will split equally the costs of required academic trips. The father shall make such payments when due and shall pay any late fees imposed because of late payments. If the mother withdraws a child from a school for which he has made payments before the child has completed the term for which the father has made tuition or other required payments, she shall be responsible for reimbursing him unless the withdrawal was necessitated by medical reasons or an unforeseeable emergency for the child.
(3) The father shall pay for any camps that Ian attends during the summer.
(4) The orders in paragraphs two and three expire for each child as that child turns 18 or, if the child is still in secondary school, when the child turns 19, unless the father otherwise consents in writing or a court so orders.
The plaintiff seeks to have these orders modifying the financial orders made retroactive. She claims that "[t]he general rule is that modification should be retroactive to the date of the motion." (Pl.'s Mem. of Law Re Retroactive Financial Orders, # 258.) The defendant, on the other hand, argues that retroactive modification of support orders is permissible only when the motion for modification has been served pursuant to General Statutes § 52-50, the statute authorizing certain persons to serve process. In support of his position, he cites § 46b-86(a) of the General Statutes, which provides, in relevant part, that
Section 52-50, provides as follows: "(a) All process shall be directed to a state marshal, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person. A direction on the process "to any proper officer" shall be sufficient to direct the process to a state marshal, constable or other proper officer. (b) Process shall not be directed to an indifferent person unless more defendants than one are named in the process and are described to reside in different counties in the state, or unless, in case of a writ of attachment, the plaintiff or one of the plaintiffs, or his or their agent or attorney, makes oath before the authority signing the writ that the affiant truly believes the plaintiff is in danger of losing his debt or demand unless an indifferent person is deputed for the immediate service of the writ or other process. The authority signing the writ shall certify on the writ that he administered the oath and insert in the writ the name of the person to whom it is directed, but he need not insert the reason for such CT Page 14064-hm direction. Any process directed to an indifferent person by reason of such an affidavit shall be abatable on proof that the party making the affidavit did not have reasonable grounds, at the time of making it, for believing the statements in the affidavit to be true. (c) Service of motions for modification, motions for contempt and wage withholdings in any matter involving a beneficiary of care or assistance from the state and in other IV-D child support cases may be made by any investigator employed by the Commissioner of Administrative Services or the Commissioner of Social Services. (d) Service of motions for modification, motions for contempt and wage withholdings in any matter involving child support, including, but not limited to, petitions for support authorized under sections 17b-745 and 46b-215, and those matters involving a beneficiary of care or assistance from the state, may be made by a support enforcement officer or support services investigator of the Superior Court. (e) Borough bailiffs may, within their respective boroughs, execute all legal process which state marshals or constables may execute.
No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of any alimony or support order from the date of service of notice of such CT Page 14064-he pending motion upon the opposing party pursuant to section 52-50.
In Shedrick v. Shedrick, 32 Conn.App. 147, 151-52, 627 A.2d 1387 (1993), the Appellate Court expressly held that § 46b-86 limits retroactive modification of support orders to those instances when a marshal or other process server authorized by § 52-50 has served the motion:
General Statutes 46b-86 requires that in order to modify the periodic payment of permanent alimony and support retroactively to the date a motion seeking modification was served on the opposing party, such service must be made pursuant to 52-50 by a sheriff, a deputy sheriff, a constable or other proper statutorily authorized officer. Merely mailing a copy to opposing counsel or the opposing party, as was done here, does not, therefore, comply with 52-50.
Numerous trial courts have followed the rule of Shedrick and denied retroactive modification for the period while a motion was pending unless a marshal had served the motion. See, e.g., Keevan v. Keevan, Superior Court, No. FST FA 0193039 S (Harrigan, J.T.R., September 14, 2005); Loustau v. Loustau, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 96 0151491 S (Shay, January 6, 2003).
In support of her argument that she is entitled to retroactive modification of the support orders, the plaintiff cites broad language in the recent case of Lucas v. Lucas, 88 Conn.App. 246, 256, 869 A.2d 239 (2005), that
[i]f the trial court decides that a party is entitled to an increase in an award of alimony, the court's order should be effective as of the date of service of notice of the motion . . . so as to afford the [party] the benefit of the modification from the time when it was originally sought.
In Lucas, the plaintiff filed a motion for modification and then later amended that motion. The trial court granted modification retroactive to the date of the initial motion, but on appeal
the defendant contend[ed] that because the plaintiff added a "new claim" on December 5, 2002, when she filed an amended motion for modification, which stated, inter alia, that the defendant was CT Page 14064-hf underemployed, any calculations the court made regarding the new allegation should have been retroactive to the date of the amended motion, not the date of the initial motion.
Id., 254. The Appellate Court defined the issue under review in that case as the meaning of the word "pending":
If the plaintiff's August 26, 2002 motion for modification was "pending" under § 46b-86(a) until the court's July 23, 2003 ruling, despite that the plaintiff later made an amendment to that original motion, then a modification retroactive to the date of the initial August motion would be permissible under the statute. In other words, no appellate cases have defined the tern "pending motion" for purposes of § 46b-86(a).
The court then held that the order would be retroactive back to the date of the original motion, at which point the motion had become "pending." Thus, Lucas v. Lucas merely dealt with how far back a retroactive order may go, and provides no authority whatsoever that the Appellate Court has abandoned the rule permitting retroactivity only upon compliance with § 52-50.
The plaintiff also claims, however, that "[e]ven if there can be no retroactivity to the date of the motion, the support order can be effective from the date that the Court first heard the support motion." (Pl.'s Mem. of Law, 11/2/05, at 18.) It is true, as plaintiff asserts, that in Shedrick v. Shedrick, 32 Conn.App. 147, 627 A.2d 1387 (1993), discussed above, the "modification was effective from the date of the hearing on the motion"; pl's Mem. of Law, 11/2/05, at 18; but the court heard and granted the motion on the same day. 32 Conn.App. 147. In quoting Vickery v. Vickery, 25 Conn.App. 555, 595 A.2d 905 (1991), that child support can be modified "from the date of the hearing on the motion"; pl.'s Mem. of Law, 11/2/05, at 18; the plaintiff neglected to recite the immediately preceding language: " modification must be prospective in nature and can be effective only from the date of the hearing on the motion." (Emphasis added.) Id., 559. Thus, neither of the cases cited by plaintiff supports her claim that, when a motion to modify is heard on multiple dates, the modification can be retroactive to the first date of the hearing (unless the moving party had complied with § 52-50).
The plaintiff did not serve her motions for modification of the CT Page 14064-hg financial orders on the defendant pursuant to § 52-50. Although defendant's counsel has said that she served her motion for modification of the financial orders pursuant to § 52-50, the court cannot find any evidence of such service, such as a marshal's return, in evidence or the court file. If either party in fact served such motions pursuant to § 52-50, that party may seek to open the evidence to submit the return; and the court will then consider whether to open the evidence for such a purpose. On the record submitted, however, the court concludes that it lacks jurisdiction to modify the financial orders retroactively. The financial orders in this decision are effective on the date of this decision.
IV — COUNSEL FEES
Both parties have requested counsel fees as part of their motions for contempt. A court deciding contempt motions has authority under General Statutes § 46b-87 to award counsel fees to a party proving contempt and also to a party found not to be in contempt. The court has made findings on the contempt motions entitling each to seek counsel fees. Both parties filed counsel fee affidavits, but the affidavits do not allocate the time spent to the various motions and portions thereof. The parties are ordered to submit revised attorney fee affidavits allocating, insofar as possible, the time listed on the affidavit, both in court and out of court, to specific contempt motions or claims. When a particular contempt motion raised more than one contempt claim, such as plaintiff's motion for contempt #191, the affidavit should specify what time was spent on each individual contempt allegation. The revised affidavits shall be submitted within one week hereof. The court will hear any objections to the affidavits at the next court hearing date.
Plaintiff also has several motions requesting an allowance of counsel fees to protect her rights to assert certain legal claims. (Motions #184, 197, 220, and 222.) She presumably bases these requests on General Statutes § 46b-62, which permits awards of counsel fees, but requires that the court consider the parties' "respective financial abilities and the criteria set forth in section 46b-82." Motion #184 seeks legal fees on the grounds that "an allowance of counsel fees is necessary so that the Plaintiff will not be deprived of her rights to proceed in this action." Motion #197 states that she has spent "considerable legal fees" on "numerous motions relating to the minor children and the father's compliance" with the parenting orders. Motion #220 based its claim for counsel fees on the fact that "defendant has failed to comply" with various court orders and had attempted, with his counsel, "to thwart the judicial process." Motion #222, dated August 16, 2004, sought counsel fees in connection with a motion to modify the parenting orders; but CT Page 14064-hh shortly thereafter plaintiff withdrew the motion for modification. To the extent that such motions seek counsel fees under § 46b-87, this court will consider such after plaintiff has submitted the revised affidavit ordered above. After considering all the statutory factors and all the evidence and information presented to the court, the court declines to exercise its discretion to award fees under § 46b-62 for the matters addressed in this motion (but will, as stated above, award fees on the contempt motions) while reserving decision about any award of fees under § 46b-62 for motions still pending until decision on those matters. IT IS SO ORDERED this 9th day of November 2005.