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Cohen v. Cohen

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

September 15, 2015

Marianna Ponns Cohen
v.
Benjamin Cohen

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO MODIFY PARENTING PLAN, POSTJUDGMENT (#157)

Erika M. Tindill, J.

The Defendant's postjudgment motion for modification (#157) filed March 30, 2015 came before the Court on the May 11 and 26, 2015 short calendars. On May 11, the Defendant marked the matter over due to the Plaintiff's medical issues.[1] On May 26th, the matter could not be reached by the Court and had to be rescheduled to the afternoon of June 5, 2015. The Court heard some evidence on that date and entered orders[2] that resolved parenting time through the beginning of the academic year (September 12, 2015).

A full evidentiary hearing on the remaining issues in the motion was held on September 11, 2015. Both parties were present and represented by counsel. One exhibit was introduced into evidence; both parties testified. The Court took judicial notice of the entire court file. Evidence and argument was limited to two issues: 1) whether it is in the minor child's best interests to modify the parenting plan such that there is court-ordered parenting time between now and the final divorce decree, and 2) whether it is in the minor child's best interest to allow him to attend his older brother's[3] wedding in Rhode Island in October. The Plaintiff argues that the June 30, 2014 parenting plan remains in full force and effect and that the motion is an attempt by the Defendant to bifurcate the issue of custody. Citing Hibbard v. Hibbard [4] and Harris v. Hamilton, [5] she claims the Court must find a material change as it relates to the best interests of the minor child since the entry of the parenting plan in order to proceed on the Defendant's motion. The Defendant asserts that a material change does exist and that certain provisions of the plan must be modified prior to the time of trial and the final divorce decree.

The Court has considered the testimony of both parties, reviewed and considered relevant case law and statutory provisions, reviewed the bench memorandum submitted by counsel for the Plaintiff, and has taken into account the argument of counsel to make its findings and orders.

The Defendant seeks modification of the parties' Stipulation Re: Parenting Plan, Pendente Lite (#149) which was approved and made a court order on June 30, 2014 (J. Heller). Specifically, the Defendant asserts that 1) the parties are unable to agree on parenting time when the minor children are home from boarding school, 2) there is no holiday and vacation schedule beyond Spring Break 2015, 3) restrictions regarding travel and contact with the Defendant's sons and father were intended to be temporary and the Defendant no longer agrees there is a necessity for such restrictions, 4) the Plaintiff has violated certain provisions of the order, and 5) the parties intended to either reach consensus or seek a court order regarding parenting time beyond May 28, 2015.[6]

Though the Court finds that there has been a substantial change in circumstances since the June 30, 2014 parenting plan was ordered, no such finding is required when the moving party is seeking a modification of visitation or parenting time.[7] The Defendant here must show--and the Court is required to find, based on the evidence--that the proposed modification is in the minor child's best interest.[8] The Plaintiff's reliance on Hibbard and Harris is misplaced as that line of cases involved movants seeking modification of an order of custody . In the instant case, the Defendant father is requesting a modification of court-ordered visitation and enforcement of the provision that contemplated an adjustment in the temporary visitation schedule.[9] Based on the evidence presented, the Court finds that the Defendant has met his burden of proving that it is in the minor child's best interest that the pendente lite plan be modified.

Modification of the parenting plan is warranted; first, because the Court now only has jurisdiction over one of the parties' children.[10] Secondly, paragraph 16 of the plan clearly alludes to its temporary nature. It states, in pertinent part:

If the pendency of this dissolution action extends beyond May 28, 2015, the parties recognize and agree that they shall need to enter into a subsequent parenting plan, pendente lite, to address and allocate future parenting time, including vacations . . . [Emphasis added].

Paragraph 16 also supports the Defendant's contention that the parties intended the plan to be in effect until such time as the Court issued final orders as to all matters outstanding between them. Finally, the Court finds that it is in Nicholas' best interests that parental access not be left to the parties to work out on their own.

While revision of the parenting plan is merited, the Court is not inclined to remove the restrictions the parties negotiated at this stage of the proceedings. Nor is the Court persuaded that a complete overhaul of the plan should be made at this point. Four trial dates are scheduled in less than two months. It is not an efficient use of the Court's time to hear hours of testimony and review voluminous evidence only to hear and review it all again soon to decide some of the same issues at trial.[11] The law supports the notion that the Court should not disturb the provisions for which the parties have bargained, compromised, and negotiated.

Accordingly, the Defendant's motion to modify is granted.

ORDERS AND FINDINGS

1. The Court finds that modification of the June 30, 2014 parenting plan is in the minor child's best interest.

2. The Husband and Wife shall share joint legal custody of the minor child Nicholas Cabot Cohen, born on November 19, 1998, provided, however, that the Wife shall have physical custody of Nicholas, and shall be able to claim head of household status for tax purposes. Beginning in the Fall of 2015, Nicholas will be in 11th grade at The Salisbury School in Salisbury, CT; he will reach the age of majority on November 19, 2016. The parties acknowledge that Nicholas will continue his education at The Salisbury School. Any change to this status shall be agreed in writing ...


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