2004 Ct. Sup. 9487
No. FA00-0505452Connecticut Superior Court, Judicial District of Middlesex Regional Family Trial Docket at Middletown
June 1, 2004
MEMORANDUM OF DECISION
MUNRO, JUDGE.
THE COURT: Okay. From this point forward, findings and orders will constitute the Memorandum of Decision on the motions before the Court.
This matter came before the Court in a post-judgment posture. The parties had been separated for quite some time before their dissolution of marriage, which occurred on August 30th, 2001; and, at that time, Court orders were entered by agreement of the parties in regard to the parenting responsibilities of the plaintiff and defendant mother and father in regard to their child Tori, who was born on July 24th, 1998. When this matter was tried before the Court, Tori was presently five years old.
By way of background, inasmuch as both custodial and economic orders are being requested from the Court, the Court makes the following findings: that the plaintiff, Miss Evelyn Prescott, was born on August 2d 1975 and, therefore, she presented herself to the Court as a twenty-eight-year-old who is living in Ellington, Connecticut.
She has an Associate Degree in Visual Communication and is employed by Circuit Cellar in what appears to be, from the continuity before the Court, stable employment and W2 wage earnings indicating that all the wages to be indicated hereinafter are as were indicated on her financial affidavit.
The defendant, Mr. Tom Zienka, was born on March 18th in 1961 — was before the Court as a forty-three-year-old, who lives in Southington, Connecticut, and has an Associate’s Degree from the University of Hartford in Electrical Engineering and a Bachelor’s Degree in — a Bachelor of Science and Engineer Technician work of some sort from the De Vry Institute. His most significant employment was for a ten-year period with the United States Navy as a reactor operator, chief engineer, at a level comparable with that. CT Page 9488
He submitted into evidence — as Plaintiff’s 1 — his employment history, which includes that Naval employment, and the Court is not going to re-recite the various job opportunities that he had after he left the Navy but notes that most of them provided job opportunities for about a year to a year and a half and he found himself in a position where he either moved or was facing layoffs or other similar shrinkage in the employment ranks of the companies he worked for and finds himself now, as a result of that, as described hereinafter, as presently unemployed, looking for work.
The Court had before it a January 21st, 2004 motion, which was an amended post-judgment Motion for Modification of the custody, visitation, child support and attorneys fees orders that came from the dissolution of marriage. That motion was coded as number 171.00.
And the Court also had before it the objection to that motion as filed by the defendant. The plaintiff also filed a Motion for Contempt in regard to allegations of contempt by the defendant for failure to make payments in regard to daycare and the like. And that motion was dated January 13th and was coded 169.00.
The Court makes the following findings of fact in reference to the law in regard to, these two motions. At the time that the parties were divorced on August 30th, 2001, they were divorced pursuant to an agreement which became Court orders, which provide for joint custody both legally and for shared residence.
The shared residence, in summary without specificity, provided for three weekends per month of Tori to live with her father Friday through Monday, most of the summer and most of school vacations and the like, with the sharing of holidays.
The shared residence arrangement in the agreement resulted also in the agreement in the parties proposing to the Court that there should not be guidelines — child support — because of shared residence; and, at the time of the judgment of dissolution of marriage, the Court, who had the case before it, did deviate from the child support guidelines, as described after this.
The agreement of the parties — and that became Court orders on August 30, 2001 — also required both of the parties to gain personal counseling within sixty days of the date of the dissolution of marriage.
The Court notes that Mr. Zienka relies on counseling that he had CT Page 9489 previous to that time with Hall and another provider but that counseling did not continue post-judgment. And Miss Prescott relies on counseling that she had with McDaniel and the Court notes that that counseling did not occur post-judgment in any substantial way but tapered off.
The conflict between the parties, notwithstanding the agreement of August 30th, 2001, continued and the Court notes that there appeared to be no building of trust nor mutual respect between the parties in the way their behavior continued.
The matter came back to Court and a Court-ordered psychological evaluation occurred. It was performed by Dr. Wendy Habelow and the matter came to this docket; and, pursuant to an agreement entered between the parties, the original agreement of custodial orders was kept in place but what was added, in essential terms, was a requirement that the parties participate in the PEACE program, which is a parenting counseling program, and that they get their own respective mental health counseling. That was October 14th, 2003.
As a result of a motion filed by the child’s representative, this Court restored the matter to the docket in December 2003, it being apparent that the ability of the parties to co-parent under the arrangements that were in place and to meet their respective obligations was not going smoothly.
A hearing was held before this Court when it was apparent that the update work by Dr. Habelow had not occurred as required: and, on January 23rd, which was somewhere around the original trial date, a further update cooperation was ordered and the Court, as a result of observing Mr. Zienka in the courtroom and having related some incidents that occurred after court, ordered, with the agreement of Mr. Zienka, that his access time with Tori be supervised by his relatives with whom he was residing — siblings and in-law — and that order was without prejudice.
What was clear to the Court at the time — and Mr. Zienka was very forthcoming about it — was he was struggling with trying to get a medical protocol for his treatment under control at the time.
The parties were also ordered to cooperate with the update with Dr. Habelow. That update ultimately did occur after both parties cooperated in the process and a second evaluation was completed with an evaluation date of May 17, 2004.
The Court, then, had the trial of this matter before it and the trial dates were May 24th and May 25th. Both parties testified and Dr. Habelow CT Page 9490 testified. Also, the Court had the benefit of the testimony of Mr. Zienka’s sister and, also, the benefit of the testimony of the plaintiff’s domestic partner and, finally, the benefit of the testimony of the guardian ad litem, who participated in the proceedings throughout the hearing in the matter.
The Court finds as a result of all the evidence presented before it and an opportunity to reflect on it that the current custody orders are not in the best interests of Tori for the reasons stated hereinafter.
Joint custody and a sharing of physical custody require, at a minimum, an ability of the parties to communicate. It requires a mutual respect between the parents or an ability to build upon some basic level of respect and it requires some elementary levels of trust to build upon. The Court finds that these are not present as between Tori’s parents.
Unfortunately, there are elements of both parties’ behavior that are not exemplary in their dealings with each other as a result of the psychological makeup of both of the parties and what is, essentially, a septic relationship in which they feed on each other negatively, rather than positively.
The Court does note — much to its disappointment — that neither party was truly aggressive about what needed to be done to work on their co-parenting relationship but was, instead, either actively aggressive or passively aggressive in the spiraling of their — or the devolution of their relationship as parents.
Neither party actively sought to participate in the PEACE Program. The efforts of both parties were, at best, hesitant and not wholehearted in any respect. Neither party actively participated in or sought to achieve an early day for a psychosexual evaluation of Tori, notwithstanding a history of over two years of concerned adults by comments or actions of Tori and neither party was an active pursuer of achieving an evaluation for Tori so that she can move on past whatever she was dealing with that was making her act out.
The Court also was disappointed that, when the plaintiff ultimately did procure a date for this treatment, which is prospective and will be occurring some time in the next couple of weeks, the defendant found out about it in court rather than through a parent to parent communication.
The Court is aware that Mr. Zienka suffers from some not insignificant mental health problems and that these have plagued him and contributed to the dilemma of the situation between both parties. CT Page 9491
I want to be totally clear that this Court does not perceive mental health problems as a question of fault or a question of voluntary conduct or behavior but, instead, it’s a question of — well, kind of — to use the word broadly — demons have been affecting Mr. Zienka — in other words, emotional problems that he has suffered from — that he has attempted to gain some insight to so that he can gain his own control over them.
This Court has no illusion that, having some of the problems Mr. Zienka has had — and observing some of them in the courtroom — is anything resembling a day in the park. Instead, undoubtedly, there have been repeated internal experiences of struggling for control and feeling difficulty, as Mr. Armata once described it when he was in this court, feeling like he wanted to get outside of his own skin; and the Court, if anything, is impressed with the level of progress that Mr. Zienka has made since observing him in January, barely able to stand before the Court and functioning, and, now, able to withstand the rigor and emotional difficulty of a trial with far more grace than he could have in January.
This Court is concerned that Miss Prescott has become so fed up in dealing with Mr. Zienka at his worst that she has decided to not deal with him as he struggles to gain control and has not been able to have the empathy for Mr. Zienka that is necessary for her to be able to be a fulsome parent to Tori, such that she will help Tori in appreciating her father’s strengths and understanding her father’s occasional emotional lapses, as he continues to struggle with his own circumstances. These are not circumstances he wishes upon himself but, instead, is left to cope with.
If Tori is to have a healthy childhood and a productive and joyous life as an adult, it will be absolutely essential that Mr. Zienka continue to struggle to gain his control: and that Miss Prescott gain empathy for Mr. Zienka’s circumstances so that she can support Tori in understanding and appreciating her father.
That said, both parties have significant strengths which they bring to the circumstances of Tori’s upbringing. Both parties are loving of Tori, caring of Tori, and nurturing of Tori. Both parties provide an adequate and appropriate home for Tori, when she is with each of them. Both parties are attentive to the educational needs of Tori and, in that little insight as to the recent SAT meeting, have shown that when Tori is faced with difficulty and circumstances that require the parents to put their own in-fighting aside, that there is a hope and a presence of mind to do so. CT Page 9492
The law provides that, when the Court is determining what is in the best interests of the child, that this Court must consider what Tori presently needs; what each party can presently offer Tori; what each party can presently do to support each other as a parent; how the circumstances of Tori’s upbringing is presently working and not working; what each party will be able to do to foster Tori’s development now and in the near future; and what each party can do in respective understanding of Tori’s special needs, which, apparently, are starting to become clear in the educational area; and this Court would suggest that Tori will have special needs in understanding and appreciating that both parties present a non-traditional home for Tori in terms of what she may find in the world.
Miss Prescott provides a non-traditional home for Tori because she is a woman in a lesbian relationship in which she is with a committed partner who provides a stepparent that is outside the norm of what society will suggest to Tori is what she should or could expect; and, therefore, Tori will need Mr. Zienka’s support and nurturance in understanding that her mother and Ms. Keil, as a what I’m going to refer to as a pseudo-stepparent, because the parties are not married, are adults to be respected and who provide strength to Tori in that home.
Similarly, Mr. Zienka provides a non-traditional home to Tori in that he is a person who is plagued with mental health problems, who brings only the best of what he has to Tori and attempts to shield her from his difficulties; and, as I’ve already indicated, Tori needs her mother to appreciate those benefits and help her when, from time to time, Mr. Zienka has some difficulty in shielding her.
So Tori is going to grow up a unique human being, in any case, but has the benefit of parents who should appreciate and can appreciate the differences they offer to Tori and perhaps help her have particular insights as a special adult when she grows up but that will only occur if both parents have the strength of character to persevere in supporting Tori as she faces difficulties in understanding the differences that her particular homes will provide.
Presently, the Court does not find that these parties can work together; and, presently, the Court does not find that there is an ability for any significant communication between these parties to Tori’s benefit; and, therefore, the Court is constrained to find that it would not be in Tori’s best interest for the Court to consider orders of joint legal custody. CT Page 9493
Given the circumstances of the parties and their respective strengths, the Court does find that it would be in Tori’s best interest to presently repose in her mother orders of sole legal custody. However, this Court is significantly concerned that, unless Miss Prescott grows beyond her own anguish and resentment of Mr. Zienka’s problems, that Tori will not have the continued benefit of all the positive things that Mr. Zienka offers Tori; and, therefore, the way these orders are structured will require significant efforts, as indicated by the orders, for Miss Prescott to involve and continue to involve Mr. Zienka as an active, interested parent in Tori’s life.
Now, the orders reflect also economically that, if Mr. Zienka is going to go about the hard work of continuing to make himself better emotionally and in regard to his mental health, that he may not be a candidate presently for the full-time employment that the plaintiff would like the Court to find he should be able to have; and the Court said it rather sarcastically to counsel in final argument but you can’t have it both ways.
If this Court is going to give Mr. Zienka the room to do the work he needs to do to make himself better, the Court cannot at the same time say, oh, he’s not ready to be a joint legal custodian right now but he is ready to have a forty-hour a week job. And this Court will not do that to Mr. Zienka because it is untenable, unfair and an impracticable position.
Further, the treatment that he is going to require, as required by these orders, may prevent him from getting full-time employment immediately but not permanently.
The Court has reflected fully on Mr. Zienka’s curriculum vitae and is struck by the following litany of facts. Mr. Zienka has not worked since April 2003 in any substantial way. That job — after thirteen months, he was laid off.
The previous job to that was seven months. The previous job to that was fourteen months. The previous job to that was ten months. The previous job to that was fourteen months. The previous job to that was one year six months, and the previous job to that was one year eight months and the previous job to that was fourteen months and, of course, the Navy was before that for a good ten years.
What does this mean? This means several things to the Court. The first is that Mr. Zienka, when given the opportunity to work, is a hard worker. But it also means that a prospective employer, looking at his CT Page 9494 resume, is going to be concerned about his ability to retain a job even if he was laid off from many of these jobs and is going to be concerned that he has now been out of the job market for over a year.
Therefore, it is highly likely that his ability to gain a good full-time job in the near future is problematic and a look at the exhibits which reflect his job search confirm that, while Mr. Zienka has been comprehensive in his searching for work, has not been presently successful and this is not something for which the Court should issue punitive orders and will not.
The Court is concerned and has ordered and will order sole legal custody because the Court notes that Mr. Zienka’s present emotional symptoms, which include the perseveration, the occasional paranoia and the occasional verbal aggressiveness has come out in his dealings with both the daycare and the pediatrician and the Court is concerned that to provide him sole legal custody would mean that Tori would suffer when he has difficulty with providers, and he continues to have emotional issues that he’s dealing with. Therefore, the Court is concerned that that would not benefit Tori and she would suffer enormously.
The Court is also concerned that, when there had been scheduling conflicts and vacation conflicts, that Mr. Zienka, as he continues to struggle, has been acting out and had difficulty maintaining his verbal aggression in dealing with Miss Prescott.
Further, he has modeled poorly in front of Tori with Dr. Habelow, speaking of the conflict in front of Tori. These issues however, the Court notes, are not because Mr. Zienka doesn’t want to do well. The Court believes that he does want to do well but that, instead, they’re emblematic of him continuing to struggle to gain control of his circumstances.
At the same time, the Court does not want to have the parties think that, for one minute, it rewards Miss Prescott’s bad behavior. The Court remains concerned that over this infamous Thanksgiving holiday that Miss Prescott continues to think that her conduct was the only way she could have behaved.
She says she told the truth technically. A lie by omission is just as bad as an outright lie and hers was a lie by omission and it played upon Mr. Zienka’s paranoia and distrust of her and put him in a circumstance where he felt, by no circumstance, could he trust her in the future.
As the person who is functioning more likely as a person in control of CT Page 9495 the circumstances, Miss Prescott should have risen above the circumstances and should not have engaged in this behavior. There were court remedies available, if it was necessary. There was always the truth, which always tends to help, and there was the decision to act for the future for the benefit of Tori rather than reacting in a passive/aggressive way to try to get her own way.
This Court is very concerned by that behavior and, frankly, the orders that are reflected here will, hopefully, prevent that kind of behavior from continuing in the future.
The orders that the Court is about to enter are both orders and, as I hit the economic portion of the orders, I’m going to make findings in regard to earnings and the like. It was the best way to do those orders rather than make the findings and, then, separate the orders out because you have issues of retroactivity and the like; and I want to, once again, praise the parties on the economic orders for entering into the stipulation that was provided in evidence and saved a lot of the haggling.
The Court grants the Motion for Modification in regard to issues of custody, visitation access and the like and orders the following.
Sole legal custody of Tori to her mother.
Miss Prescott shall, by e-mail, weekly — every Friday — send to Mr. Zienka an e-mail which informs him of (1) any current health problems that have occurred in the previous week in regard to Tori, how those health problems are being handled, if there is medication that has been prescribed, what the nature of the medication is and whether any follow-up treatment is required.
That e-mail shall include any communications that Miss Prescott has received that week from the school, any teacher or any administrator in regard to Tori, with an inclusion of any comments, reports or suggestions for improving Tori’s performance in school.
It shall also include reports of any evaluations that Tori has received by way of standardized testing and the like, report cards and any indication, of any praise that Tori has received for her behavior in school or her academic performance in school for the previous week. That e-mail shall also include any information as to the previous week’s extracurricular activities and religious activities, what Tori has been involved in; and, if activities are coming up, which activities parents are invited to; if tickets are required; how to procure the tickets; and CT Page 9496 when those activities are coming up, their time, their date, their place and any other relevant information.
This requirement for every Friday e-mail is excused only if Tori is away with her mother on a trip for that Friday.
Extracurricular activity includes summer activities. Miss Prescott shall also, by e-mail, as soon as she receives notice of the same, give Mr. Zienka notice of all parent/teacher conferences, all SAT or PPT conferences or the like, when they are, where they are; and Mr. Zienka may participate — attend those conferences whether or not they are on his access time with Tori.
Mr. Zienka may attend all school extracurricular and religious events to which parents are invited, even if they are not on his visitation or access time.
Mr. Zienka shall have, as permitted by the law, access to all of Tori’s medical and school records.
Tori shall reside with her mother and Mr. Zienka shall have parenting time with her on the following schedule. Year round, not just during school, Mr. Zienka shall have Tori with him Friday when it is school — I’m going to describe the pickup and, then, I’ll describe when school is not in session — every other Friday, pickup at school after school to drop off Monday at school before school. And that’s every other weekend to commence this weekend — June 4th weekend.
If school is not in session, the pickup and drop off shall be at daycare from Friday pickup at four p.m. to drop off Monday at nine a.m.
Now, with regard to school vacations and/or holidays or summer vacations, the following schedule of access for holidays and vacation supercedes and pre-empts the weekly schedule that I just provided. And, when I tell you that it supercedes and pre-empts it, it means that the weekly parental access schedule shall be suspended and there is no makeup time.
Now, counsel, for your edification, so that you don’t feel like you have to take every word I’m about to say, some of these orders are adapted from the attorney for the minor child’s orders at (e), (f), (h), (i) and (q) with some minor changes you’ll hear as I go.
As to (e), the Court accepts it entirely as provided by the attorney for the minor child’s proposal and, therefore, changes none of the CT Page 9497 language. The parties shall alternate holiday access and it describes the holiday access as follows.
Christmas — the parties shall alternate Christmas — December 23rd pickup at school or daycare and drop off to mother’s home on December 25th at six p.m. by Mr. Zienka and New Year’s — December 31 pickup at school or daycare and drop off to school if classes are in session and, if not, to mother’s home on January 2nd at six p.m.
Mother shall have Christmas in 2004 and even years. Father shall have Christmas in 2005 and odd years.
Father shall have New Year’s in 2004 and even years. Mother shall have New Year’s in 2005 and odd years.
As to other holiday access, mother shall have Easter on even number years, with father having the same in odd number years.
Mother shall have Thanksgiving on odd number years and father shall have Thanksgiving in even number years.
Now, as to Easter, when it’s the father’s time, he shall pickup from the mother’s house at nine a.m. and drop back to the mother’s house at five p.m.
When it’s the father’s Thanksgiving, he shall pickup at the mother’s house at nine a.m. and drop back to the mother’s house at eight p.m.
Father shall have Memorial Day weekend every year. Mother shall have Labor Day weekend every year. When the father is doing his picking up and dropping off for Memorial Day weekend, it will be with the school daycare. In other words, it will be after school on Friday and it will be drop off at daycare on the Tuesday after the Memorial Day weekend because Memorial Day is celebrated on a Monday.
The mother shall always be entitled to Mother’s Day weekend and father shall always be entitled to Father’s Day weekend. All of these holiday accesses that I have just given you are covered by the proviso that the weekly parental access schedule shall be suspended with no makeup time.
Summer — as to the summer vacation, the parties have told the Court that there’s about a nine-week hiatus with school off. The Court is allowing the minor child to stay with the mother the week after school and the week before school for purposes of unwinding and preparation and, then, the balance of the summer shall be on the normal access CT Page 9498 schedule that I have provided, except the father shall be entitled to two non-consecutive summer vacation weeks with the child and the mother shall be entitled to two non-consecutive summer vacation weeks with the child.
Now, the father shall elect his two weeks by written notice to the mother by March 1st of each even-numbered year. This year, it shall be by June 15th because it’s too late to do it. And the mother shall elect her two weeks by written notice to the father by April 1st of each even number year. This year, it shall be by June 30th because of the lateness.
In odd-number years, the mother shall give her notice in writing to the father of her two weeks by March 1st and the father shall give his written notice by April 1st.
Now, when the parent has the child for their vacation weeks, the parent may take the child out of state during that vacation or during their parenting time on the parenting schedule provided if the child is flying on an airplane, the parent shall give the flight information on the airline, the flight numbers and the dates of flight and, if the child is going on the airplane, the telephone number where the child can be reached at.
Neither parent for their vacation time in the summer is allowed to pick Tori’s birthday as part of their vacation week. All of Tori’s birthday celebrations shall be celebrated in accordance with the parent’s regular parenting time. All Halloween celebrations shall be celebrated in accordance with the parent’s regular parenting time.
Neither party shall make any disparaging or derogatory comments concerning each of the other parents or their respective family units to Tori.
Now, pursuant to Connecticut General Statute 46b-56g, the Court finds that it is in the best interests of Tori for the father to engage in therapy, as well as to maintain his prescriptive medical protocols and the Court also finds it is in the best interests of Tori for the mother to also engage in therapy so that she may understand Mr. Zienka’s mental health issues and support Tori and Mr. Zienka in understanding their relationship.
The Court finds that Mr. Zienka’s therapy would benefit Tori so that he can understand his own mental health issues, how to manage them and control his own emotional outbursts and to help Mr. Zienka to accept ultimately Miss Prescott’s lifestyle and sexual orientation and support CT Page 9499 Tori in her relationship with her mother in her mother’s household.
Therefore, both parties shall engage in immediate therapy for those reasons described, until such time as their therapists indicate that they have benefited from the therapy and no longer need therapy.
The Court does accept that Mr. Zienka is about to engage in the evaluation and in the therapy process through the Veteran’s Administration and will accept that therapy as his participation in therapy so long as he continues his medical protocols and so long as he does nothing personally to delay the process of engaging in therapy through the Veteran’s Administration.
Each party shall be allowed a daily telephone call to Tori. That call shall be initiated by the parent who is parenting Tori at the time and, unless the parties agree in writing with each other, that phone call shall be made between seven p.m. and seven-thirty daily to the parent who does not have Tori with them.
That phone call, once initiated by the parent who has Tori with them, shall be by and between Tori and the other parent only, without the parent who has Tori with them listening in.
The Court notes that Tori is about to engage in an evaluation and, then, therapy and the Court finds it is in her best interest that she remain in therapy and, therefore, it shall continue as long as the therapist finds it appropriate to continue and the payment of those bills shall be pursuant to the child support guidelines.
Both parents shall participate in Tori’s therapy as requested by the therapist, since it would be contrary to Tori’s best interests if they were to fail to do so.
The Court is not going to order the parties to engage in co-parenting therapy at the present time but is going to order that the parties, six months from this date, engage in co-parenting therapy thereafter for a minimum of six months.
The reason for the hiatus is to provide both parties an opportunity to get themselves into therapy and to gain some insight into their own behavior so that they can benefit from the co-parenting therapy that they will then engage in. They will each pay one-half of the cost of co-parenting therapy.
Now, as to the other major issue that was before the Court and that is CT Page 9500 child support, the Court notes that in the August 30, 2001 judgment each of the parties were to pay one-half of the daycare and extracurricular costs. Miss Prescott was to carry health insurance for Tori. Each was to pay one-half of unreimbursed expenditure. There was to be life insurance, as available, through employment; and there was to be an alternating of the dependency exemption, with the odd year starting with Miss Prescott; and the parties were each to contribute — they had agreed in writing to do so and signed it — to CHET in the amount of $50 a month.
Pursuant to deviation criteria 46b-215a-3(6)(A), the Court had approved an order of no child support. At that time, the Court notes that a guidelines worksheet submitted to the Court provided for a gross of the following: $748 a week for Miss Prescott, $830 a week for Mr. Zienka; and a net to her of $508, net to him of $599. The Court is not going to recite all the things that I took down but notes the following: that there showed a child’s health insurance premium of each of the parties $25 per week but only a subtraction of the same for Miss Prescott, since she was ordered to carry it, and, therefore, showed a child support obligation of $86 a week for Miss Prescott, $130 a week for Mr. Zienka. And so when a deviation of no child support was ordered at the time, it was based upon those guideline numbers.
On April 15, 2002, the parties entered into an agreement which was made a Court order, which provided for Mr. Zienka to pay $40 per week child support plus half of the daycare in regard to a pending motion to modify child support. No guideline worksheet was submitted to the Court at the time.
That order of $40 per week was without prejudice to either of the parties and it was pursuant to an agreement with an order. The child support orders were — if they were to be modified, it was to be retroactive to April 15, 2002 and that Mr. Zienka would gain credit for any payments he made under those Court orders.
Now, the stipulation showed the Court that, at that time, the parties had a net which showed out as $596 a week for Miss Prescott and $828 a week for Mr. Zienka, extrapolating from the yearlies.
A net for Mr. Zienka was, therefore, $229 per week higher than it was at the time of the dissolution and so the Court finds that that constitutes a substantial change of circumstances under the law as of April 15, 2002 and the Court notes that Mr. Zienka remained in that employment through April 2003.
The Court is constrained to tell the parties that it disagrees that the CT Page 9501 parenting arrangement that was in place at April 30th, 2001 would have resulted in this Court ordering a deviation from the guidelines because, if you look at the explication of what that deviation is, it is not so significant from that which was provided by the authors of the guidelines that would have resulted in this Court finding a basis for a deviation.
However, the parties have accepted and functioned based upon that and the Court accepts that deviation occurred and accepts it is the rule of the case and functions accordingly until such time as this Court is able to enter orders under its findings.
Now, the Court notes that, as of the April 15th, 2002 agreement, not only was Mr. Zienka’s net $229 a week higher but the child’s health insurance premium had doubled to $54 a week or more than doubled from $25 per week. Presumedly, therefore, the Court must find and make conclusions as to what it would have done as of April 15, 2002, because the parties had stipulated that orders were retroactive to that date; and, therefore, while the Court finds a substantial change of circumstances, the Court does deviate from the guidelines because the parties had an agreement that deviation should have occurred and a previous Court had ruled that it should occur as a result of the parenting agreement and the Court accepting that the rule of law of this case does deviate and so, therefore, although the presumptive current child support as of April 15, 2002 should have been $183 per week, the Court deviates from the guidelines and sets the child support as of April 15, 2002 of $75 per week due from Mr. Zienka to Miss Prescott, plus a contribution of one-half of the daycare, which remains intact from the previous orders.
Therefore, from April 15, 2002 to April 30th, 2003, pursuant to the stipulation of the parties, the Court finds that Mr. Zienka paid $40 per week of child support on account of whatever obligation the Court was going to order and that amounts to $2,160. At a child support of $75 per week, which this Court sets, as the deviated child support as of April 15, 2002 to April 30, 2003 or fifty-four weeks, the child support for that period is $4,050.
Mr. Zienka is due a credit of $2,160 and so, therefore, an arrearage accrues of $1,890 as a result of the adjustments of child support for April 15th, 2002 through April 30th, 2003 when he was no longer employed at Fuel Cell.
Now, it would be inequitable to not continue to adjust, based upon those substantial changes or circumstances that occurred after April 30th, 2003 by reason of Mr. Zienka’s continuing influx situation. Therefore, the Court attempts to reflect those circumstances which CT Page 9502 includes his period of collection of unemployment and, then, the period thereafter when unemployment was no longer due or collectible by Mr. Zienka.
Now, on July 21st, 2003, the parties entered into an agreement that child support orders, if modified based upon the defendant Mr. Zienka’s unemployment, the Court should find them retroactive to that date. So, therefore, the Court cannot find retroactivity prior to July 21, 2003.
So, for the period of April 30, 2003 to July 21, 2003 — a period of twelve weeks — child support accrued at the rate of $75 per week for an additional $900. No payments were made of child support on that amount and, therefore, there is an additional arrearage of $900.
Now, as of July 21st, 2003, the Court finds to the present date that it cannot and has no basis to find an earning capacity presently in Mr. Zienka. The Court notes his historical earnings but notes also the job track record and the mental health evidence before it and the Court has no present evidence before it of his employability; and, therefore, the Court can make no child support orders from that point forward based upon an earning capacity.
The Court does note that there were two things at issue here that occurred and that was that, to a certain extent, Mr. Zienka’s family took over paying his bills by gifts as needed and that he used his 401k to start satisfying some of his personal obligations and that, for a period from May 2003 to December 2003, he had a period in which he was able to get unemployment.
And so for the period of unemployment, which was collected at the rate of about $370 to $373 a week, the Court accepts the child support guidelines computations which show a combined net of the parties of $910 for a child support obligation combined of $196, a health insurance premium now up to $63 per week for Tori, so a combined child support obligation plus health insurance of $259 a week, which results in an obligation of supporting Tori of 71.21% of Miss Prescott of $184 a week and 28.79% of Mr. Zienka of $75 per week.
The unallocated health expenditures and daycare expenditures on those numbers come to 20.55% for Mr. Zienka and 79.45% for Miss Prescott.
If the Court assumes that $82.50 per week is one-half of the daycare, then, $165 per week is one hundred percent of the qualifying daycare and that 20.55% for Mr. Zienka — that would mean for that period he has a daycare expenditure obligation of $33.90. Therefore, pursuant to the CT Page 9503 Motion to Modify and the substantial changes of circumstances that have occurred, the Court modifies the child support obligations from April 30, 2003 to December 31st, 2003 to provide for child support at the guidelines amount of $75 per week and for daycare and health expenditure amount or daycare at $33.90 per week.
Now, this is where it gets complicated, if that wasn’t. The Court did an initial calculation of twenty-six weeks of those numbers and realized that it would have required and resulted in a double-dipping and so, therefore, took seven weeks off and understands that it is, instead, nineteen weeks from May 1st to July 21st, 2003 because he went through April 30th and so the child support accrued at the rate of $75 per week for nineteen weeks at the amount of $1125 and the daycare accrued at the rate of $33.90 a week for nineteen weeks to $881.40; and, therefore, for the period of May 1 to December 31, 2003, after allowing for credits for sums already counted, there was an accrual of $2,006.40.
Now, the Court notes that Mr. Zienka stopped paying daycare after December 1, 2003 and stopped paying the $40 per week after April 30th, 2003. Because he continues to have money, he made a decision and an election to pay some of his bills but not pay his child support and daycare obligation.
Though there were Motions to Modify pending, the law is clear in Connecticut that a party cannot self-help when they have an ability to pay; and, therefore, the Court is constrained and must make a finding of contempt for his decision for failure to continue to pay — (Mr. Zienka stands up and starts to leave the courtroom.)
THE COURT: Mr. Zienka —
MR. ZIENKA: Ma’am, you can have my daughter. It’s over. I’m done.
(Mr. Zienka leaves the courtroom.)
THE COURT: The Court will continue in Mr. Zienka’s absence.
ATTORNEY FORDIANI: If I may just very briefly, Your Honor, he doesn’t quite understand and I’ll explain it to him.
THE COURT: It’s very complicated. I know it is.
ATTORNEY FORDIANI: He — he — I apologize for my client, Your Honor.
THE COURT: I’m going to continue. I’m going to try to explain how it CT Page 9504 all plays out and, then, Mr. Fordiani, make sure you’ve got the notes clearly because you’re going to have to, at another time, sit down with him when he’s calmed down to make sure he understands this. Okay.
ATTORNEY FORDIANI: Yes, Your Honor.
THE COURT: All right. The Court is constrained to make a finding of contempt because he made an election to pay other bills with the remaining 401k and not the child support and the daycare.
That said, the Court issues no orders in regard to the finding of contempt other than the orders that are going to be issued for the payment of the arrearages. No counsel fees will be ordered and no other penalties, punishments or coercive orders will be entered as a result of that finding other than the order that he needs to pay the arrearage, as required.
Now, in sum, counsel and Miss Prescott, the Court has entered, if you missed it along the way, the following orders in regard to the economics. The child support was modified based upon a substantial change of circumstances for the period, number one, from April 15th, 2002 to April 30th, 2003 to $75 per week child support and half of the daycare — at that time $82.50 a week — and the CHET payments continued. Okay.
The child support was, then, modified again based upon a continuing change of circumstances of May 1, 2003 to December 31, 2003 with no deviation to $75 per week child support and $33.90 per week daycare with the CHET continuing; and, then, child support was modified once again to the present time of January 1, 2004 to the present and on into the future of $0 per week child support and half of the daycare at $82.50 and CHET.
That finding is based upon the following orders. While the Court does not believe that Mr. Zienka is necessarily employable on a full-time basis, the Court notes that there remains in his possession $3,000 of 401k; he is being almost wholly supported by his family, much to their credit; and he has some employability, at least on a part-time basis, while he continues in his mental health treatment; and, therefore, the Court orders Mr. Zienka — and please be very clear on this, Mr. Fordiani, because he’s going to have to comply with this, okay —
ATTORNEY FORDIANI: Yes, ma’am.
THE COURT: — to engage in five new job searches every day five days per week for full or part-time work and he is to submit, in writing, to the Court every week where he applied, what job he applied for, who his CT Page 9505 contact person was, and what the results were.
He is to appear in court here every Monday morning, commencing two weeks from today’s date — in other words, June 14th — at nine-thirty in the morning until he gets a job.
When he gets a job, a proper and full child support order will be set and it will be set pursuant to the guidelines.
Now, counsel and parties are excused from appearing on those Monday mornings until such time as the Court orders their presence and notice will be provided of the same.
Now, if Mr. Zienka fails to comply with this order, it may result in his incarceration and so he needs to understand the importance of compliance.
If it were to come to pass, Mr. Fordiani, that those Monday mornings — every Monday morning is when he needs his VA treatment, the Court is not inflexible. I’ll move the date. Okay.
ATTORNEY FORDIANI: Yes, Your Honor.
THE COURT: I understand the VA is harder to work with than I am. They have their own bureaucracy.
Now, he has $3,000 in the bank. Daycare at $82.50 a week can last a long time and that is his first obligation under his remaining funds. I have a high level of confidence that he will procure employment before that money wears out.
Now, all of the arrearages that the Court found total $2,606, if you will recall. Now, those arrearages are going to be paid in full by Mr. Zienka with good funds after he procures employment.
He is not, however, permitted to accrue and think he can accrue an arrearage on the daycare obligation. That must remain current.
Now, Dr. Wendy Habelow has an outstanding bill. She had a retainer of $3500. That was paid by Mr. Zienka without prejudice to an order of the Court. She, then, had an outstanding balance of $395, plus $1250 to testify. Those two sums total $1645.
She was paid half of those by Miss Prescott. She, therefore, has a balance of $822.50. The Court notes that she already had $3500 paid, CT Page 9506 without prejudice, by Mr. Zienka.
The GAL — Attorney Armata — has been paid by Mr. Zienka $3,000 and, by Miss Prescott, $1,000, which orders were similarly without prejudice to an allocation after this hearing. He still has an obligation outstanding of $2,000.
After considering all of the orders in this matter and of the financial scenario in this matter, the Court orders that Miss Prescott shall pay Dr. Habelow in full $822.50 and Mr. Armata in full $2,000 and those sums shall be paid in full within a hundred and twenty days.
Now, those are all of my orders. I’m happy to have counsel tell me if they think I misstated something.
Oh, I’m sorry. Those aren’t all the orders. I had a note here that I didn’t read.
For the present year forward — 2004 forward — Miss Prescott is entitled to Tori as a dependency exemption. However, when there is a setting of the child support order, that is in the mix for reconsideration at the time of the setting of the child support order for future years 2005 forward.
Go ahead.
ATTORNEY FORDIANI: Your Honor, I believe that this Court ordered, back in January, Mr. Zienka to pay $2,000 on the arrearage of the child support and the —
THE COURT: I gave him credit for it. I didn’t say it?
ATTORNEY ARMATA: That was $2160.
ATTORNEY FORDIANI: You didn’t say it, Your Honor. No.
ATTORNEY ARMATA: Yes. She did.
ATTORNEY FORDIANI: She did say that?
ATTORNEY ARMATA: I have it in my notes.
THE COURT: I did give him credit.
ATTORNEY FORDIANI: I missed it. CT Page 9507
THE COURT: Thank you for getting it. I gave him credit against the — let me just find it and I’ll tell you.
ATTORNEY ARMATA: $4,050.
THE COURT: Here we go. The child support that accrued from April 15, 2002 to April 30, 2003 was $4,050. I credited him $2,160 against that.
ATTORNEY FORDIANI: Your Honor, I thought the testimony was that he stopped paying in April 2003 and that he had made — those were his current payments.
THE COURT: He, then, had an arrearage — okay. I may not have said this so I’m just going to keep reading my notes because I know I have his $2,000 credit here. So let me read them. Okay. Bear with me.
So that was the payments he made. You’re right. That was the payments he made. That left a balance of $1,890 and, then, he had a further balance of $900 for the period of April 30, 2003. So that was another $900.
That took us to $2,790 — wait a minute. I do have the credit. Here it is.
And, then, he made a payment of $2,000. Let me read it here. Summary through December 31, 2003 — those two are both the credits. Then, he had an arrearage of child support of $1,125 to 12/31/2003. Okay. You follow that?
ATTORNEY FORDIANI: Yes, ma’am.
THE COURT: All right. He, then, had daycare — I didn’t read this. I realize that. He, then, had daycare paid. He paid daycare through December 1, 2003 at $82.50 a week but the daycare was accruing at $33.90 a week because of the modification.
So he had a benefit — I did not read this, I realize now — he had a benefit of $48.60 a week of an overage, which was a further credit of $923.40. On January 30th, 2004, he paid $2,200.
So, therefore, through to December 31, 2003, he had the following arrearages: $1,890, $900, $1,125 for a total of $3,915.
He had the following credits: $923.40 and $2,200 for $3,123. CT Page 9508
Therefore, he had a balance due of $791.60. I’ll read this again because I realize I didn’t read it and I’m sorry.
Now, he had continued to accrue — (Mr. Zienka’s sister came into the courtroom.)
MR. ZIENKA’S SISTER: Excuse me, Your Honor. May I have a moment — just one moment with the attorney?
THE COURT: No.
MR. ZIENKA’S SISTER: To ask his attorney —
THE COURT: No.
MR. ZIENKA’S SISTER: — to call him?
THE COURT: He’ll call him after, ma’am. Please don’t interrupt me.
MR. ZIENKA’S SISTER: Okay. Thank you. (Mr. Zienka’s sister left the courtroom.)
THE COURT: Now, what has continued to accrue after that is the daycare — okay — at $82.50 from January 1, 2004 forward to May 31 and that is twenty-two weeks at $82.50. So he has a daycare accrual this year of $1,815.
You add that to the arrearage through December 31, 2003, after all credits of $791.60, and you come to a total arrearage of $2,606.60.
I completely flipped over the page when I was giving you the orders and I’m really sorry. Did you get all that?
ATTORNEY LOBO: Yes.
ATTORNEY ARMATA: Maybe later on, if we can just sort of recap just the math.
THE COURT: You can just look at my notes because I cleaned it up after and put it on a sheet and I’m happy to have you all look at it.
ATTORNEY FORDIANI: I understand it, Your Honor. CT Page 9509
THE COURT: Okay?
ATTORNEY FORDIANI: Yeah.
ATTORNEY LOBO: I just have —
THE COURT: So I did give him the credit. I didn’t say it out loud and you’re right, Mr. Fordiani. Thank you.
ATTORNEY LOBO: I understand the math but my question, if the Court could help me with this, is —
THE COURT: Yeah.
ATTORNEY LOBO: — is the April 30, 2003 —
THE COURT: Yeah.
ATTORNEY LOBO: — which we said was his employment to July 21, 2003 —
THE COURT: Yes.
ATTORNEY LOBO: — to the date of the stipulation for retroactivity.
THE COURT: Right.
ATTORNEY ARMATA: That was $75, Your Honor.
THE COURT: I, therefore, did not retroactive that period. The difference is very small but I didn’t retroactive that period because there was no stipulation of retroactivity.
ATTORNEY LOBO: Correct. But my question was —
THE COURT: Okay. Go ahead.
ATTORNEY LOBO: — that there was a $75 per week that the Court extrapolated to the twelve weeks —
THE COURT: The child support stays the same. It was the daycare that went down.
ATTORNEY LOBO: But there wasn’t — the arrearage was $900, which I believe was just seventeen — twelve weeks at $75. There was no arrearage during that period. CT Page 9510
THE COURT: Say that again.
ATTORNEY LOBO: Wait a minute.
THE COURT: I’m sorry.
ATTORNEY LOBO: I’m confused now.
THE COURT: Here, let me give it to you again. It’s right here.
ATTORNEY LOBO: Oh. It’s because the Court kept the daycare contribution —
THE COURT: Right.
ATTORNEY LOBO: — the same?
THE COURT: Right.
ATTORNEY LOBO: Okay. All right.
THE COURT: Okay?
ATTORNEY LOBO: Okay.
THE COURT: And, Miss Prescott, you’re the only party left in the room but I apologize to you and Mr. Zienka on the record for the complexity.
I’ve stewed with just doing one change but it really was not fair because the Court had continuing jurisdiction over the major sources of modification; and, by flipping the page when I summarized it, I may have been misleading but I’m happy to go over it again, if you want.
And, frankly, counsel, I’m happy to let you look at my notes because they’re cleaned up so you don’t see my thought process in them in any case. All right.
The arrearage is not being lump summed at the present time. I’m waiting for Mr. Zienka to get a job and, then, I’ll enter orders on the arrearage.
ATTORNEY ARMATA: And total arrearages, Your Honor — $2,206.
ATTORNEY LOBO: $2,606. CT Page 9511
ATTORNEY FORDIANI: $2,606.
THE COURT: The total is $2,606.60.
What looked like it was going to be easy when I sat down with the math was not easy and I apologize to all of you but I wanted to make those orders equitable in the context of these parties.
Is there anything else, counsel?
ATTORNEY FORDIANI: Not from the defendant.
ATTORNEY LOBO: No, Your Honor.
THE COURT: All right. And as to the custodial orders, you’re clear on those, because it’s not going to get typed like today. It’ll get typed fairly quickly but you’re clear on what they are?
Yeah. Go ahead.
ATTORNEY FORDIANI: Just who has visitation on Friday?
THE COURT: This Friday commences Mr. Zienka’s weekend.
ATTORNEY FORDIANI: Thank you.
THE COURT: Okay. And it’s pickup from daycare on Friday to — to school on Friday — I’m sorry — to school on Monday. Okay.
Anything else?
ATTORNEY FORDIANI: No.
THE COURT: All right. If there’s any lack of clarity, I’m happy to help you with it on the numbers, but I think I read them right but I understand I read them out of order and so I just want to be clear with you all on that.
ATTORNEY ARMATA: Just if we can take a look at —
THE COURT: Okay. Now, Mr. Fordiani, impress upon, please, your client that he does need to be here for that reporting.
ATTORNEY FORDIANI: Yes, Your Honor. CT Page 9511-a
THE COURT: Okay?
ATTORNEY FORDIANI: Yes, Your Honor.
ATTORNEY ARMATA: Will this Court maintain the file here?
THE COURT: The file is going to stay here for now because of the reporting. And when I’m excusing everyone but Mr. Zienka coming for the reporting, the unhappy news for you. Mr. Fordiani, is, if he doesn’t show up as a result of him being upset, you best come because he’s going to need his attorney.
ATTORNEY FORDIANI: Yes, ma’am.
THE COURT: Okay. Thank you.
(Whereupon, the Court adjourned at 3:25 p.m.)
Judge Lynda B. Munro Regional Family Trial Docket
CERTIFICATION
I hereby certify the foregoing pages are a true and correct transcription of the tape recording of the above referenced case, held in Superior Court Judicial District of Middlesex, Middletown, Connecticut, before the Honorable Lynda B. Munro, on the 1st day of June 2004.
Penny M.A. Schonvisky Recording Monitor
CT Page 9512