Lederle v. Spivey, No. 28838.

• Citation: 113 Conn.App. 177,965 A.2d 621
• Decision Date: 17 March 2009
• Docket Number: No. 28838.
• Court: Appellate Court of Connecticut
• Parties: Catherine LEDERLE v. Stevan SPIVEY.

965 A.2d 621

113 Conn.App. 177

Catherine LEDERLE v. Stevan SPIVEY.

No. 28838.

Appellate Court of Connecticut.

Argued January 6, 2009.

Decided March 17, 2009.

Richard G. Kent, for the appellant (defendant).

Gary I. Cohen, Greenwich, for the appellee (plaintiff).

Mark H. Henderson, Stamford, guardian ad litem for the minor child.

McLACHLAN, LAVINE and WEST, Js.

McLACHLAN, J.

In this dissolution of marriage action, the defendant, Stevan Spivey, appeals from the judgment of the trial court. On appeal, the defendant claims that the court improperly (1) permitted the plaintiff, Catherine Lederle, to relocate with their minor child to Virginia, (2) ordered him to pay a penalty for missed visitations, (3) awarded sole legal and physical custody to the plaintiff and (4) ordered him to maintain life insurance beyond the child's attainment of the age of majority. We affirm the judgment of the trial court.

The court reasonably found the following relevant facts. The parties were married in Darien on December 31, 1998. The parties had one minor child, born April 29, 2000. The parties' marriage had broken down irretrievably, and there was no reasonable prospect of reconciliation.¹

The plaintiff was employed in marketing and sales, and her income was $210,000 in 2006.² Approximately six months after beginning work with her current employer, Lexmark, in 2004, the plaintiff's sales territory was changed from Danbury to Washington, D.C., Virginia, West Virginia and North Carolina. The plaintiff needed to be on-site during the sales process to facilitate the sale, to consult with customers and to observe the customer's work flow. The plaintiff also needed to be available to her customers after the installation of hardware to ensure that their systems functioned and to monitor for upgrades and the integration of new products. The plaintiff believed that if she was not permitted to relocate to Richmond, Virginia, she would be unable to compete for advancement in leadership and management roles within the company. If and when the plaintiff achieved a management position, she would be able to earn commissions on the basis of the sales of her subordinates.

The defendant held jobs with at least eight different companies since the parties married. At the time of judgment, the defendant worked as a sales representative and operated out of a home office. The defendant had two children, ages fifteen and nineteen, from his first marriage. The defendant's first divorce was acrimonious and led to disputes over the payment of child support and alimony during his second marriage. The defendant discussed with several people different ways of hiding income from his first wife as a method of reducing his financial obligations to her. Prior to trial, the defendant had been depositing his paycheck into his mother's bank account because, according to him, his bank account was seized by the Internal Revenue Service for tax liabilities.³

The parties' child suffered from a number of medical problems, one of which caused seizures and could require prompt medical attention. Since the child's diagnosis in 2004, the plaintiff had observed seventeen to twenty seizures. She had developed, for school officials, babysitters, day care and other care providers, a package of information regarding symptoms, when emergency help must be sought, the names of the child's medical providers and emergency contact numbers. The defendant had never witnessed one of his son's seizures. The parties had disputes about their child's medications, with the defendant claiming that the plaintiff gave the defendant insufficient medicine, the plaintiff claiming that the defendant was not available for the exchange of medication,⁴ one parent throwing the medication at the other and other similar claims. Their child witnessed some of the altercations between the parties regarding his medication. The parties also required court orders to determine when each could be present during a medical procedure that required the child to stay in the hospital for twenty-four hours.

The parties also had disputes over the child's sports activities, his religious training, parenting time during the summer vacation prior to trial, a party scheduled during the defendant's parenting time and the subject of the child's "show and tell" at school. It is clear that the parties have different parenting styles, with the plaintiff being more protective and cautious than the defendant.⁵

Attorney Mark H. Henderson was appointed the child's guardian ad litem by the court in 2005. Henderson met with both parties on several occasions, met with their child, made home visits and attended an appointment with the child's physician. Henderson considered the plaintiff to be the primary caregiver and the maker of decisions regarding religion, medical care and education. Henderson noted that the plaintiff was very well informed regarding her son's health, but the defendant "downplayed" the significance of his son's health issues. Henderson also observed that parental collaboration was very limited and that the defendant was primarily responsible for the lack of timely resolution of parenting issues. Henderson recommended sole custody be awarded to the plaintiff.⁶ Henderson also recommended that her request to relocate to Richmond, Virginia, be granted because (1) the employment opportunity was genuine, (2) the defendant did not financially support the child during the pendente lite period, (3) the plaintiff was legitimately anxious about the cost of living in Fairfield County, (4) the plaintiff had sufficient flexibility to make a long distance visitation schedule work, (5) the plaintiff was committed to continuing the father-son relationship despite the relocation and (6) the child was young enough to make the move and still enjoy a close relationship with the defendant.

Phyllis Cummings-Texeira, a family relations counselor, completed a custody study recommending that if sole custody was awarded to one parent, the plaintiff should have sole custody. Cummings-Texeira concluded that the plaintiff was the primary caregiver, meeting the day-to-day and extraordinary needs of the child. Cummings-Texeira stated that relocation to Richmond, Virginia, was in the child's best interest because (1) the plaintiff was his primary caretaker, (2) the plaintiff had valid reasons to relocate, (3) the relocation was not an attempt to remove the child from the defendant to harm their relationship, (4) the plaintiff had concerns about providing a good, stable life for her son and concerns about the cost of living in Fairfield County, (5) the plaintiff wanted to move to advance her career and to have job stability, (6) the plaintiff had concerns about being able to pay her child's medical expenses and (7) although the defendant was not ordered to, he did not pay child support or pay any of the child's medical expenses of approximately $18,000.

The court found that it was in the child's best interest to have the plaintiff serve as the sole custodial parent. The court stated that the defendant loved his son, but "as evidenced by his communication and inability to co-parent with the plaintiff, he is angry and self-absorbed and has also deprived [his son] of financial resources." The court also found that the defendant "[was] not always attuned to the child's emotional needs." The court found that the plaintiff "has always had a loving and affectionate relationship with the child and, since [he] was born, has fully met all of his day to day needs. Moreover, compared with the defendant, she is more nurturing and supportive in her parenting style, more aware of the child's medical, emotional and psychological needs and more responsive to his overall needs. Finally, the plaintiff will not hinder the relationship between father and son, whereas the defendant's refusal to compromise on parenting issues will end in a stalemate with [his son] being left in limbo until a court makes a decision."

The court also found that "the defendant's conduct during the entire course of litigation shows him to be untrustworthy and unreliable in his financial dealings with the plaintiff. The defendant was not candid in his financial disclosures to the court or the plaintiff, he was not candid in his financial disclosures to his first wife, and the court has no evidence that his behavior will not continue unabated until the child reaches adulthood.... [The defendant] has been vindictive toward [the plaintiff] in making parenting decisions, exchanging medicine and the like, without regard of the effect his behavior would ultimately have on his son."

The court also found that "the defendant has both the means and opportunity to maintain frequent contact with [his son].... The defendant has changed jobs nearly every year during the course of the marriage and currently works from his home. Nothing about the nature of his business limits its geographical reach. He has sufficient financial resources to go to Virginia frequently to see his child and sufficient control over his work schedule to do so. The court's orders regarding his parenting time will thus offer him significant access to his son and will not marginalize his role as a father."

The court also found testimony persuasive that "the plaintiff will do a good job of helping [her son] integrate into his new environment. The plaintiff's nurturing and supportive style will help the child through the transition. Although close to his father's relatives [in Connecticut, the child] will be close to his extended maternal family in Virginia.... [The child] has been cared for by his maternal grandparents, on whom the plaintiff will sometimes rely for child care in Virginia."

The court found that it was in the best interest of the child to relocate to Richmond, Virginia, with the plaintiff. "The child's own interests in sustained growth, development, and well-being require that the custodial parent be...