Kelley v. Kelley, No. Fa93-0062 122 S (Nov. 17, 2000)

2000 Conn. Super. Ct. 14105
CourtConnecticut Superior Court
DecidedNovember 17, 2000
DocketNo. FA93-0062 122 S
StatusUnpublished

This text of 2000 Conn. Super. Ct. 14105 (Kelley v. Kelley, No. Fa93-0062 122 S (Nov. 17, 2000)) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelley v. Kelley, No. Fa93-0062 122 S (Nov. 17, 2000), 2000 Conn. Super. Ct. 14105 (Colo. Ct. App. 2000).

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
This post judgment case was referred to the Regional Family Trial Docket by the Judicial District of Litchfield. It consists of the plaintiffs Motion for Modification dated August 5, 1999 #118). This motion addresses the plaintiff's desire to change the parenting plan incorporated in the judgment from one of shared joint physical and legal custody to one of sole custody in the plaintiff with visitation by the defendant on alternating weekends during the school year and more extensive visitation during school vacations. The defendant also filed a Motion to Modify dated August 5, 1999 (#117) but withdrew it orally at the commencement of the hearing. The plaintiffs motion was heard over six trial days. The court received testimony from the parties, the family services evaluator, the Guardian Ad Litem, and three other witnesses. Several exhibits were submitted as evidence.

The parties, Peggy Ann Jensen (Ms. Jensen) and Jeffrey S. Kelley (Mr. Kelley), were married for seven years and divorced on September 29, 1993. There are two children of the marriage: Dana Kelley born August 6, 1986 and Shelby Kelley born November 2, 1990. A separation agreement signed by both parties was incorporated into the judgment of the court (Pickett, J). That agreement provides, in part:

"The parties will share custody of the minor children. The children will reside with the father from Sunday 9:00 a.m. to Wednesday 9:00 a.m. Every other weekend the father will have extended time beginning on Saturday 9:00 a.m. The children will reside with the mother the remainder of the week days and every other Saturday. Holidays, school and summer vacation periods will be shared and/or alternated per agreement of the parents."

Until sometime in 1996 the parties followed the parenting plan established at the time of the dissolution. Then, Mr. Kelley got a new job with a rotating schedule which made the plan impractical. So, the parties worked out an amended plan which called for Mr. Kelley to have the Children on whatever two days during the week that he was off from work, and every other weekend. his plan was followed until 1999 when Mr. Kelley lost his job and the parties went back to the original plan. On April 17, 2000 the parties agreed to a modification in the parenting plan which increased the length of Ms. Jensen's alternate weekend parenting time. This change was approved by the court without prejudice to either party in the argument of this motion to modify.

Both parties lived in Torrington at the time of the divorce. Mr. Kelley stayed in the marital home until November 1998 when a foreclosure forced CT Page 14107 him to move to an apartment on Butler Street in Torrington. This is near Barber Street where Ms. Jensen had been living since the divorce. In the [all of 1998 Ms. Jensen moved in with her boyfriend, Scott Saunders, at a two-family house he owned on Prescott Street in Torrington, also near Mr. Kelley's apartment. In the fall of 1999 Ms. Jensen moved to a new home in Barkhamsted with Mr. Saunders, now her fiance. Ms. Jensen and Mr. Saunders own this home jointly and live there with Mr. Saunders's two children, Brian, age 18, and Patrick, age 15.

When the children were younger and the parties both lived in Torrington, Ms. Jensen and Mr. Kelley were able to cooperate for the benefit of the children. Both children attended neighborhood schools in Torrington and did well in their studies. The parties were able to work through any disputes that arose regarding the children. Unfortunately, this spirit of cooperation evaporated in the spring of 1999 when Ms. Jensen and Mr. Saunders began construction of their Barkhamsted home, and Ms. Kelley's move to Barkhamsted became imminent. Barkhamsted is part of the Region 7 school district. Ms. Jensen told Mr. Kelley that she wanted to take full custody of the children and to enroll the children in Region 7 schools in the fall of 1999. Mr. Kelley objected. Since then the parties have become spiteful, petty and hardhearted toward each other. As a result, both have done things that are not in the best interests of the children. Much of the trial was consumed with the parties making a record of these various acts of pettiness and spite.

On June 8, 1999 Mr. Kelley made a complaint to the Torrington Police Department about Ms. Jensen after the parties had an argument at Mr. Kelley's apartment. Each party has a different version of this argument. The children had spent the day with their father and had gone to bed when Ms. Jensen called to discuss her plan to enroll the children in Region 7 schools. Mr. Kelley refused to agree with this plan. Ms. Jensen became enraged and verbally abusive. Mr. Kelley hung up. Within a few minutes Ms. Jensen showed up at Mr. Kelley's door in a rage. The parties continued their argument in the doorway. Ms. Jensen ended up forcing her way into the apartment. Mr. Kelley called the police. They did not arrive until after Ms. Jensen had already left. Ms. Jensen was not charged with an offense as a result of this incident.

Later that summer, on August 1, 1999, Ms. Jensen was supposed to deliver the children to Mr. Kelley in the morning. However, she notified Mr. Kelly that she was going to take the children to an amusement park that day and would not return them until that evening. Mr. Kelley objected to the children not being returned to him in accordance with the parenting plan. Ms. Jensen knew that she had no right to keep the children beyond the time specified in the court ordered parenting plan. She did it anyway. Mr. Kelly went to the Torrington Police Department to file a CT Page 14108 complaint. He was informed that it was a civil matter and would have to be handled in court. Ms. Kelley returned the children at about 6:00 p.m. that evening. Dana was not feeling well when he got to Mr. Kelley's house. Later that evening, Dana awoke with a bad headache. Mr. Kelley waited until morning and then got an appointment to see a doctor that day. The doctor diagnosed an ear infection and prescribed an antibiotic. Dana recovered quickly and did not require a follow up visit. As a result of this incident, Mr. Kelley reported to the Department of Children and Families that he believed that Ms. Jensen was guilty of medical neglect. None was found by DCF. There is no credible evidence that Ms. Jensen is guilty of neglect of the children in any way.

On August 4, 1999 Mr. Kelley refused to return the children to Ms. Jensen when his visitation was ended. Mr. Kelley knew that his action was in violation of the court ordered parenting plan. He did it anyway. Mr. Kelley testified that he refused to return the children because he was [earful about their safety. He denied that he was defying the authority of the court. However, there is no other way to construe his actions. The children were kept from their mother until August 11, 1999 following a court hearing. Ms. Jensen was unable to have contact with Dana on his birthday, August 6, 1999.

The principal issues presented in this case are: 1) Should the legal custody of the children be placed in the hands of Ms. Jensen? 2) Should the physical custody of the children be modified so that they would live solely with Ms. Jensen on all school-days? Intertwined with these issues is the question of whether Shelby should change schools from Vogel Whetmore School in Torrington where Mr. Kelley lives, to Barkhamsted Elementary School in Barkhamsted where Ms. Jensen lives.

Connecticut General Statutes, Section 46b-56 requires that the court's decision on a motion to modify a custody decree must be based on the best interests of the children.

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Bluebook (online)
2000 Conn. Super. Ct. 14105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-kelley-no-fa93-0062-122-s-nov-17-2000-connsuperct-2000.