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Thaner v. Thaner

Superior Court of Connecticut, Judicial District of Hartford, Hartford

June 29, 2016

Robert B. Thaner
v.
Lori A. Thaner

          Filed June 30, 2016

          SYLLABUS

          MEMORANDUM OF DECISION REGARDING PLAINTIFF'S POSTJUDGMENT MOTION FOR CONTEMPT (#389) RE DEFENDANT'S FAILURE TO RETURN THE CHILDREN

          Elizabeth A. Bozzuto, J.

         I

         INTRODUCTION

         Before the court is the Plaintiff's postjudgment motion for contempt, #389, dated July 17, 2015. In it, the plaintiff alleges that the defendant willfully kept the children in violation of the court's order and also interfered with the children's attendance at school. For the reasons set forth below, the court finds by clear and convincing evidence that the defendant willfully failed to comply with the clear and unambiguous orders of custody and access.

         II

         BACKGROUND

         The litigation history of this case is extensive and relevant. There are several court orders and memoranda of decision that chronicle the parties' intense post-dissolution litigation history. Below is a brief synopsis to provide relevant context for the motion currently pending before the court.

         A. Memorandum of Decision Dated December 28, 2010

         In 2010, after an 8-day trial, the court wrote: " A difficult and contentious parenting relationship continued to intensify through 2007 and into 2008. It further deteriorated in the fall of 2008 when the plaintiff was told by his five-year-old twin daughters that they had been sexually abused by their half-brother Reed. For purposes of this decision, it is not necessary to give a full history of the events following this disclosure. Suffice it to say that Reed Thaner was charged as a juvenile and a delinquency matter proceeded in Juvenile Court."

         In a footnote, the court mentioned, " Reed's last name was officially changed to Thaner by the parties in happier times earlier in their marriage. The boy was not adopted by the plaintiff as his biological father is still alive and his parental rights have not been terminated. The biological father apparently objected to the name change in the Probate Court proceedings."

         The court further noted, " In family court, changes were made to the parenting plan which included a no contact order between the Thaner children and Reed Thaner. The father was given sole legal custody of the children, but they continued to reside primarily with their mother."

         " As the case ripened toward a hearing in the spring of 2010, the defendant mother made several decisions that altered the matter greatly. Reed had been living with third parties during the week when the four Thaner children were with their mother in Glastonbury. In April of 2010, those third parties were not going to be available for a period of time due to vacation plans overseas. Mother's efforts to change the court order failed and she decided to bring Reed into her home at the same time as the other four Thaner children would be in her care. That plan was thwarted by the Guardian ad litem (GAL) and resulted in a new referral to the Department of Children and Families (DCF). The following month, the defendant mother once again decided to allow the children to be in the house with their half-brother."

         On May 10, 2010, the court, on a temporary basis, awarded the plaintiff sole legal and physical custody of the four minor children. The children have resided with the plaintiff ever since this date.

         During the course of the 8-day trial, a focus of the court's attention was on the defendant's ability to parent the children safely. The court noted that both the Family Services' evaluation and the GAL opined that the defendant could not parent the children safely. The court concluded, " This court must agree with both of these determinations. The defendant's testimony included all the correct language and assurances, but throughout that testimony the court perceived a continuing inability to truly understand the seriousness of the events and how her actions since the disclosure have continued to potentially endanger her daughters." The court entered an order of sole legal and physical custody to the plaintiff. The defendant was awarded an access schedule which included every other weekend from Friday after school to Sunday evening, as well as every Tuesday evening and every other Thursday evening.

         The December 28, 2010 court order has been monitored, reviewed and challenged on several occasions since December 2010. As this court previously noted, since 2007 rarely a month goes by without the parties filing a motion and/or making an appearance in court.

         B. Memorandum of Decision Dated January 30, 2015

         The most recent review of the order of sole custody to the plaintiff came by way of a seven-day trial before the court, culminating in a memorandum of decision dated January 30, 2015. Before the court at the time were the defendant's two post-judgment motions to modify (#228 and #355) both seeking to modify the December 28, 2010 order that granted the plaintiff sole legal and physical custody of the four minor children. The trial of these motions included volumes of evidence of the plaintiff, defendant and children's actions and interactions between themselves, the court, schools, the Department of Children and Families (DCF), therapists and providers over the course of a four-year span, from 2010 through 2014. Time and time again, it was the defendant's judgment that was called into question. The memorandum of decision details a consistent pursuit by the defendant to undermine the court's 2010 order all in her effort to gain custody of the minor children.

         Unfortunately, as Family Relations opined in their second comprehensive report and this court found, the most significant change between 2010 and 2014 was the extent to which the defendant unilaterally and fully immersed the children into the parents' conflict and more particularly, the defendant's pursuit to gain custody of the children.

         The court noted, " Although FRO considered the children's preference, she did not attach significant weight to it in that it was clear that the defendant 'coached' the children extensively. At FRO's meeting with the children, their presentation seemed 'very much a presentation.' The conversation had a 'rehearsed' element to it. The children appeared on a 'mission' to convince the FRO to return them to the defendant. The children, who at the time were approximately 8, 10 and 12 years old, came prepared with statistical data and information comparing Norwalk's and Glastonbury's crime rate, schools, activities and school lunch."

         The court noted the following, excerpting from the FRO's 2014 written comprehensive custody evaluation: " . . . the children viewed themselves in active partnership with their mother to make the move happen which was not only unfair to them on many levels but likely clouded any pure representation of what they might want in the situation. This writer strongly believes that the Thaner children are frustrated genuinely by the distance between their homes and desire more time with the mother they miss, fiercely love and know is miserable, spouting statistics about a high crime rate in Norwalk, a lack of quality education at father's which would preclude their ability to ever attend a good college or achieve their full potential in life, and making unfavorable comparisons between the 'type' of friends they have in Norwalk versus Glastonbury, in this writer's estimation, all reflect carefully placed adult concerns that were foisted upon the children to help justify a change in their primary residence. This writer contends that children should not be worried about such things. However, given that such concerns were planted and nurtured by the mother whom they love and trust, they naturally blossomed and along with father's stricter parenting style, lack of culinary skill and other perceived deficits-factored heavily into the children's pitch for a return to some 'better life' in Glastonbury. The downside of Ms. Thaner's use of the children to advocate in this fashion, as this writer sees it, is that their happiness in Norwalk is always being questioned and they are being prevented on the deepest levels from ever feeling really settled or accomplished in father's primary care which is not in the children's best interest emotionally, academically or socially. Another equally destructive outcome of Ms. Thaner's use of the children as advocates is their high-end involvement in the parental conflict around their living arrangement and related but exaggerated sense of importance to the court, sadly believing that their weigh-in and expressions of loyalty to one parent or the other are what is most critical at this point. This writer believes that this burden is being carried unfairly by all of the children."

         The court concluded: " Since 2010 the defendant has failed, across the boards to support the children's home, their school, their sporting events, their musical pursuits, their extra-curricular activities, their father and their faith. The passing of four years clearly indicates that the defendant's interference with, and failure to support the children's home in Norwalk, and everything attached to it, including their schooling, enrichment activities, sporting events and religious commitments, amongst other things, is not in the children's best interest . . ."

         " The tragedy of this is not only has it been counter-productive to the defendant's pursuit to have the children in her care and custody, but even far more egregious is that the defendant acted in ways so cruel to her children. What could have been wonderful moments marking the children's childhoods have been turned into events that would be best left forgotten. There is an abundance of evidence before this court that the defendant has made personal decisions, either by design, indifference or lack of insight, that have worked to undermine, upset, disrupt and insult the children's lives in Norwalk with the plaintiff. She did this in an effort to gain custody. Unfortunately, not only do her actions speak strongly against any change in custody, but of far more significance, is the fact that she has hurt her children along the way."

         " The defendant is her own worst enemy, and in the court's estimation, she either does not realize it or she cannot control it. As found in 2010, the defendant would appear to continue to lack the necessary insight to appreciate how her personal and unilateral decisions and actions negatively affect those whom she loves and ultimately negatively impact her parenting."

         The 2015 decision essentially left intact the 2010 parenting plan, which provides for the defendant to have the children every other weekend from Friday after school to Sunday evening, in addition to every Tuesday evening and every other Thursday evening. The existing orders relative to supervision of the children when Reed is present were left unchanged.

         C. Court Activity Since Issuance of the January 30, 2015 Memorandum of Decision

         It was less than a month after the issuance of the January 30, 2015 Memorandum of Decision[1] that the plaintiff filed several motions for contempt. Although all of the orders of the court relative to the defendant's conduct bear on the current proceeding, the court will only highlight those findings and orders, post-January 30, 2015, that are relative to access and orders of therapy for the defendant.

         1. Plaintiff's Motions For Contempt Regarding the Defendant's Failure to Comply With the Order of Access (#371 and #373)

         On February 20, 2015, the plaintiff filed two motions for contempt alleging that the defendant failed to comply with the custodial access schedule, in that she failed to return the children timely and exercised her weekday visitation outside the greater Norwalk area.[2]

         After hearing, the court found that between October 2014 and January 29, 2015 the defendant failed to return the children to the plaintiff consistent with the order of the court on at least 17 occasions, with many of the returns being well past 9 p.m. on school nights.[3] Additionally, the court found between February 3, 2015[4] and March 5, 2015, [5] the defendant failed, on at least 8 occasions, to return the children to the plaintiff; instead she kept the children overnight, in violation of the court's clear, unambiguous and long-standing order of December 28, 2010.

         After hearing, the court found, by clear and convincing evidence that the defendant willfully failed to comply repeatedly with the court's order of access, within a very short period of time, post-January 30, 2015 decision. The court noted, " The evidence before the court is clear that not only has the defendant willfully violated the clear and unambiguous weekday access order of the court, flagrantly, on a multitude of occasions, but she continues to demonstrate little or no regard for any orders of the court which she doesn't like. Aside from being contemptuous, this behavior on the part of the defendant continues to disrupt and disturb the ability of the plaintiff to properly parent the children as the primary and sole custodian, which appears to this court to be the defendant's desired intent. The defendant continues to act in ways that cause great and unnecessary upset and disruption in the children's lives. The defendant, by her actions, has placed the children in the middle of the conflict, a conflict which is largely created by the defendant."

         Although the court found by clear and convincing evidence that the defendant willfully failed to comply with the court's order of access, the court did not punish the defendant nor alter the defendant's access with the children. Instead, the court entered an order that was intended to incentivize the defendant to comply with the order of access. The following is the subject order:

The defendant's weekend access with the children is hereinafter conditional. The defendant shall only have weekend access with the children if she is fully compliant with her weekday access.

a. If the defendant fails to comply with the weekday access schedule as ordered by the court on either a Tuesday or a Thursday, she forfeits her next occurring weekend access in its entirety.

b. If the defendant fails to comply with the court's order of weekday access on more than one occasion during the period of time between the defendant's alternating weekend access, she shall forfeit the following two weekends of her scheduled access.

c. If the defendant fails to comply with the weekday access schedule three or more times in a thirty-day period, the defendant's access shall be suspended completely, pending further order of the court.

         It is important to note that these orders were issued by the court on May 6, 2015.

         2. Plaintiff's Motion for Contempt Regarding the Defendant's Failure to Comply With the Court's Order of Therapy (#374)

         The plaintiff alleged in this motion for contempt, dated February 20, 2015, that the defendant willfully failed to comply with the court's order of therapy dated January 30, 2015.

         The court found as follows:

         " Since the original court order of 2010, several courts have found that therapy for the defendant is necessary and the defendant has been ordered into therapy no less than three times by a judge of the superior court. To date, the defendant has failed to comply with, or substantially comply with, any single order of therapy. Most recently, relative to the contempt proceeding presently before the court, the defendant has wilfully failed to comply with the third order of therapy dated January 30, 2015."

         " This willful and repeated non-compliance with court ordered therapy, in conjunction with the court's other findings of contempt for the defendant's willful and repeated non-compliance with the court's order of access (#383) causes this court considerable concern for the defendant's capacity to appropriately parent the children. Further, and more relevant, is that despite the defendant's consistent resistance, the defendant's behavior continues to demonstrate a need for intensive therapy."

         " The court originally allowed the defendant to select any therapist she wanted so long as the individual met the criteria set forth in the order. In that the defendant had no regard for the selected therapist's credentials and the selected therapist was 'confused' by the court's order, it is in the children's best interests that the court direct the selection of a therapist."

         " The court finds the defendant has, by clear and convincing evidence, willfully failed to comply with the court's January 30, 2015 order of therapy, without any credible or justifiable excuse. The court finds the defendant in contempt of the court's order." This decision was issued by the court on June 2, 2015.

         III

         FINDINGS OF FACT REGARDING THE PENDING MOTION FOR CONTEMPT ALLEGING THE DEFENDANT'S FAILURE TO COMPLY WITH THE COURT'S ORDER OF ACCESS (#389)

         The instant motion before the court is the Plaintiff's postjudgment motion for contempt wherein the plaintiff alleges the defendant refused to return the children to him.

         Having considered all of the credible evidence and testimony before the court, as well as all the exhibits entered into evidence, the court makes the following findings of fact relative to this motion, #389.

         The plaintiff originally filed this motion for contempt on June 4, 2015, along with an ex parte application for custody and a request to suspend the defendant's access. In his affidavit, the plaintiff averred as follows: " On May 22, 2015[6] the defendant picked up the children for visitation and has refused to return the children to my care. She unilaterally attempted to enroll them in school in Glastonbury, which was denied. Subsequently the children have not attended school since May 26, 2015. In addition, defendant has engaged in parental alienation during the time they were in her care. On May 28, 2015, the defendant was arrested for four counts of custodial interference 2nd degree and a protective order was issued prohibiting defendant from any contact with the children and myself. DCF is currently investigating and has temporarily placed the children with Defendant's aunt, Carol Crudi, for a 96-hour 'Hold.' The prosecutor at Norwalk GA 20 requests that I file an emergency motion in family court."

         The court granted the application ex parte and suspended the defendant's access. The matter was scheduled to be heard by the court on June 16, 2015. The plaintiff failed to appear to prosecute the motions and they were dismissed. The same motion for contempt was refiled by the plaintiff on July 17, 2015. This motion was heard by the court on August 26, 2015.

         It is beyond dispute that the defendant picked up the children on May 22, 2015.

         It is further beyond dispute that as of the first date of the hearing, the defendant still had custody of the children and continued to refuse to return the children to the plaintiff. It wasn't until August 31, 2015 that the children were ultimately returned to the plaintiff's care but only after the court had to go to extraordinary lengths to coerce the defendant's compliance with the court's order of access by ordering the defendant incarcerated.

         The credible and unrefuted evidence establishes that the children were delivered by the plaintiff to the defendant for normally scheduled access on May 22, 2015. The children were to be returned to the plaintiff the evening of Monday May 25, 2015. Consistent with the order of the court, the plaintiff traveled from Norwalk to Glastonbury to pick up the children on May 25, 2015 at 7:30 p.m. The defendant refused to return the children to the plaintiff. The testimony from the defendant was that the children refused to go with the plaintiff and she did nothing to encourage them to go. The plaintiff asked the defendant on direct examination, " As their mother and parent, did you encourage the children to come out to the car, so that they could go home with me?" The defendant responded, " No." The defendant stated that she can't make the children go and she won't force them to go if they don't want to.

         In addition to the defendant failing to return the children to the plaintiff, she kept all four children out of school from May 25 to June 2, 2015.[7] The defendant testified that since the plaintiff was the sole legal custodian, he was responsible to ensure the children's school attendance, all the while the defendant kept the children in her home in Glastonbury against court order, refusing to return them to the plaintiff.

         As a result of missing 10 days of school while the defendant kept the children in Glastonbury, the Department of Children and Families (DCF) became involved. A neglect petition was filed and substantiated against the plaintiff for the children's failure to attend school. The plaintiff appealed that decision and it was reversed.

         Also, at or about the same time as the defendant was holding the children against court order, the defendant filed an Application for Removal of plaintiff as guardian of RJ with the Glastonbury Probate Court. The probate court summarily denied and dismissed the defendant's application on May 20, 2015.[8]

         Further, given the defendant's persistent refusal to return the children to the plaintiff consistent with the orders of the court, the Norwalk Police Department became involved. The Norwalk police contacted the defendant in an effort to secure the children's return to the plaintiff, short of having to arrest her. In the arrest warrant affidavit, the officer states that the defendant indicated she will not " make" the children go with the plaintiff. The officer indicated to the defendant that he was going to prepare a warrant for her arrest for custodial interference. The affidavit indicates that after the defendant heard this, she began to " bargain" with the officer, asking the officer if he would hold off on the warrant if she brought the children to school. The officer agreed to hold off on preparing a warrant for her arrest. Despite the defendant's representations, the children remained out of school and the defendant refused to deliver them to school, all the while she held them in her custody in Glastonbury, against court order.

         Ultimately, on June 2, 2015, the defendant was arrested by the Norwalk police and charged with 4 counts of custodial interference. These criminal charges remain pending.

         As a result of the defendant's arrest, the children could not remain in the defendant's care. The children continued to resist going with the plaintiff. The plaintiff acquiesced to the resistance. As such, on June 2, 2015, pursuant to a 96-hour-hold, DCF placed the children with the defendant's aunt and then with the defendant's mother, who resides in Southington, CT. While in the maternal grandmother's care, the children were returned to school in Norwalk, delivered each day by state provided transportation.

         A matter was brought to juvenile court in Norwalk where it pended for a few months. During the pendency, despite the fact the children were placed in the maternal grandmother's custody, the children spent most of their time with the defendant. Ultimately, in July of 2015, DCF withdrew its petition. The court (Kaplan, J.) found no child protective issues and recommended that the matter be dealt with in family court. The court further recommended that the plaintiff and defendant follow all orders from family court regarding custody and visitation.

         DCF attempted to facilitate the defendant's return to compliance with the family court orders. This effort was faced with stiff resistance by the defendant. It is noted in a DCF record that the defendant stated to the social worker, " . . . he (the plaintiff) will see he doesn't stand a chance of the children returning to him." The defendant attempted to enlist DCF's assistance in securing the children's custody. The social worker informed the defendant that this is not their role. The defendant responded by telling the social worker she should expect a call from her attorney.

         The maternal grandmother eventually indicated she could no long care for the children. Once again, the children defaulted to the defendant's full-time care. Once again, the plaintiff demanded return of the children. Once again, the defendant resisted. Fearing the plaintiff would involve the police to secure the children's return, the defendant preemptively contacted the Glastonbury police. The DCF records indicate the defendant " was trying to dictate to him (the officer) how to handle the situation as she is predicting that it will result in police involvement." The police informed the defendant that they would not take orders from her.

         The plaintiff went to Glastonbury to pick up the children. The defendant informed the plaintiff that the children did not wish to return to his care. The defendant accepted no responsibility to comply with the court's order of custody and made no effort to return the children to the plaintiff. The plaintiff returned home once again without the children.

         Despite the father's request for return of the children; police involvement, criminal arrest, four charges of custodial interference; family court orders detailing the consequences to the defendant for failing to abide the court's orders of access; juvenile court involvement; and DCF involvement, the defendant persistently refused to return the children to the plaintiff, claiming the children didn't want to go, and she was not going to force them. During this entire period of time wherein the defendant wrongfully retained the children, the children had no access or contact with the plaintiff.

         At the close of evidence on August 26, 2015, the court entered a temporary order, pending receipt of the DCF and juvenile court records, that the children were to be returned immediately to the plaintiff. In response, the plaintiff stated the following: " Frankly, Your Honor, I can't take this anymore. No one helps me on the outside. You give me all this power. The police don't help me. DCF doesn't help me. Nobody helps me. Mrs. Thaner, as you have said, manipulates the children. There's nothing I can do. By having them come back with me, and they don't want to, all that's going to do is cause more behavioral problems that I don't want to deal with . . . I am suggesting that I give custody back to the State and you put them in protective custody . . . it's not that I can't care for my children, Your Honor. It's just that, you know, they're constantly being manipulated. Mrs. Thaner is constantly working against me with the children. You know, she hasn't allowed them to vest in Norwalk."

         While the court considered the plaintiff's plea, the plaintiff, clearly frustrated, acquiesced, and the court ultimately reiterated its order that the plaintiff go to Glastonbury to pick up the children. The court continued the case for two days, to August 28, 2015, to monitor the defendant's compliance with the court's order directing the return of the children to the plaintiff.

         On August 28, 2015, it was reported to the court that the plaintiff travelled to Glastonbury, the children resisted going with the plaintiff and the defendant ...


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