Moskowitz february 2011 decisionDocument Transcript
STATE OF MAINE Cumberland, ss DISTRICf COURT Location: Portland Docket No. FM-08-51O Igor Malenko.) Plaintiff v. ORDER ON PLAINTIFFS MOTION TO MODIFY ANDLori Handrahan, OBJECTION TO DEFENDANTS Defendant INTENDED RELOCATION Mila Malenko is a little girl who just turned four years old. All the evidence presented tothe court during the various proceedings in this matter shows beyond a reasonable doubt that sheis a smart, cute, happy and delightful child. All of the evidence presented to the court also showsthat both of her parents are intelligent people who love her very much. Unfortunately, all of theevidence presented to the court also shows that an effective co-parenting relationship betweenthe parties has never developed since the Divorce Judgment was issued. Mila needs both hermother and"her father to be engaged with her individually as a parent. She has that. Mila alsoneeds both her mother and her father to be committed to work together to collaboratively andcooperatively love her and guide her through her childhood. She clearly does not have that. Thefact that her parents are not able to co-parent her is harmful to Mila, and it will undoubtedlybecome increasingly harmful to her as she gets older. In Milas interests, the conflict betweenher parents must stop, or at least it must be significantly abated. The courts Divorce Judgment in this matter was an attempt to set the framework for theparties to transition into a co-parenting relationship after a highly contentious trial. Since theDivorce Judgment was issued, a Complaint for Protection From Abuse, a Complaint forProtection From Harassment, complaints alleging attorney misconduct, and numerous post-judgment motions have been filed, and the rancor between the parties has become steadily worse.All the while, the well being of a wonderful four-year-old girl literally hangs in the balance.
This matter most recently came before the court on Plaintiffs Motion to Modify and Objection to Defendants Intended Relocation. A hearing was held on January 14,2011. Plaintiff and his attorney, Michael Waxman, Esq., were present. Defendant and her attorney, Elizabeth Hoffman, Esq., were present. I The court heard testimony from both of the parties and from three additional witnesses. Various exhibits were admitted into evidence. On December 19,2010 via e-mail, the Defendant provided notice to Plaintiff that she would be relocating to the Washington, DC area. Defendant accepted employment as a Senior Project Director with AED in Washington. That employment officially began on November 29, 2010. Her new job involves overseeing and facilitating a girls scholarship program in Africa. The work is humanitarian in nature, and is much like being in the Foreign Service, except her new employer, AED, is a non-governmental organization. In accepting this job, Defendant more thandoubled her yearly income from 2010? Pursuant to 19-A M.R.S. § 1657(2), Defendants relocation constitutes a substantial change in circumstances requiring a review of any previousarrangement of parental rights and responsibilities. Currently, the parties share parental rightsand responsibilities, and Milas primary residence is with the Defendant. The evidence indicates that both of the parties are very attentive to Milas basic needs, andboth of the parties wish for Mila to be happy and healthy. The evidence also indicates that Milais quite comfortable with both of the parties individually as her mother and as her father.Unfortunately, the evidence demonstrates that, at least presently, a co-parenting relationshipbetween the parties is not possible. It is not possible because the Defendant either refuses or isunable to let it happen. Whether the Defendant "refuses" to co-parent with the Plaintiff, orwhether she is "unable" to co-parent with the Plaintiff is unclear. The answer to this questionmay lie at least in part, to the Defendants narcissistic personality diagnosis. The distinction isimmaterial to the present determination to be made by the court, but it might well be important atsome time in the future regarding the Defendants capacity to co-parent with the Plaintiff. The testimony from the parties at the most recent hearing was very similar in tenor to theirtestimony at trial in December of 2008. The court finds the testimony of the Plaintiff to becredible. He was forthright, his testimony made sense, and his testimony was corroborated byI Attorney Hoffman filed a Motion for Leave to Withdraw as Counsel for Defendant onDecember 21, 2010. The court granted this motion after the conclusion of the hearing onPlaintiffs Motion to Modify and Objection to Defendants Intended Relocation.2 Information presented in the form of a Child Support Affidavit established that Defendantearned $45,000.00 in 2010. 2
other evidence. The court does not find the testimony of the Defendant to be credible. The Defendant was very evasive in her answers to questions, and she made a strange and unsubstantiated claim. She testified that, "pedophiles use decongestants to sedate children.,,3 No credible evidence was presented at all to indicate that Mila was provided any drugs or was influenced by drugs. Nevertheless, the Defendant suspected that the Plaintiff had drugged Mila. Consequently, the Defendant had a test done on Milas urine in February of 2010. She claimed that there "was "meth" in Milas urine that was documented at a national lab." She offered no credible evidence to corroborate this claim. The Defendant indicated that the Department of Health and Human Services refused to intervene regarding her claim, so she contacted the Drug Enforcement Agency (it was unclear whether the Defendant contacted the Maine Drug Enforcement Agency, or the Federal Drug Enforcement Agency). Apparently, the DEA refused to intervene as well. Based upon the evidence presented, the court does not find the Defendantsclaim to be at all credible. When the court issued its Divorce Judgment, it was hopeful that the Defendant would beable to co-parent Mila with the Plaintiff, but there were clear signs, based on the Defendantspre-divorce conduct, that this hope might be ill founded. Specifically, the court was concernedabout the Defendants ability to co-parent Mila with the Plaintiff in light of the fact that theDefendant had continually insisted that the Plaintiff was mentally ill and that he requiredtreatment (when he was not mentally ill at all). Moreover, the Defendant insisted that thePlaintiff take certain medications for "his mental illness" (that Plaintiff did not need, but whichhe nevertheless took to avoid difficulty with the Defendant). Additionally, the Defendant triedunsuccessfully in two instances to have the Plaintiff involuntarily committed for mental healthtreatment. Since the Divorce Judgment was issued, the Defendant has continued to demonstrate thatshe will not cooperate with the Plaintiff in the parenting of their daughter. She has unilaterallyremoved Mila from her day care arrangements. She has refused to inform the Plaintiff of whereMila attended day care, or who Milas medical care providers are. In August of 2009, theDefendant simply relocated to Sorrento, Maine, a town four hours away from South Portland,where the parties had been residing. She did this without any notice to the Plaintiff. All of theseactions were in direct violation of the Divorce Judgment.3 In August 2009, the Defendant filed a Complaint for Protection From Abuse alleging that thePlaintiff had sexually abused Mila. This claim was unsupported by the evidence presented athearing, and judgment was entered in favor of the Plaintiff. See Handrahan v. Malenko, No. 2011ME 15, decided 1/25/1 1. 3
The court finds that the Defendant lacks the capacity to allow and encourage continuing and frequent contact between Mila and the Plaintiff, and that she lacks the capacity to cooperate or to learn to cooperate with the Plaintiff in caring for Mila. The Defendant has shown no interest in seeking out methods for her use in cooperating with the Plaintiff or for her use in resolving disputes with the Plaintiff relating to the parenting of MIla: the Defendant has simply resisted the Plaintiffs efforts to be Milas father at nearly every turn. Conversely, the court is more optimistic that the Plaintiff has the capacity and the willingness to co-parent with the Defendant. He understands that Mila needs both of her parents,and he has expressed a willingness to cooperate with the Defendant. Further, the Plaintiff has not disobeyed the courts orders, as the Defendant has, and the Plaintiff has been very patient andappropriate in his response to the Defendants recalcitrance. The court finds that Mila has spentenough time with the Plaintiff to be very comfortable with him as her dad. The livingarrangements that the Plaintiff provides for Mila are quite stable and adequate, and Mila iscomfortable with her life with the Plaintiff in South Portland. Considering the Defendants actions to block the Plaintiffs efforts and his rights to beMilas father, the court believes that it is not in Milas best interests for her primary residence toremain with the Defendant at this time. Based on the evidence presented and on the verydifficult history of this case, the court believes that the Defendant will continue to resist thePlaintiffs efforts in parenting Mila. This resistance can (as it has in the past) involve makingunilateral decisions in important matters, deliberately withholding important information andcommencing legal proceedings that hinder Milas contact with the Plaintiff. The Defendant willnow be residing in Washington. In this new arrangement, there will be long distance betweenthe parties and the Defendant will have access to courts in an entirely different jurisdiction.There has been a finding made in another proceeding tangential to this family matter that theDefendant previously filed her Complaint for Protection From Abuse in the Ellsworth DistrictCourt in an effort to avoid dealing with the Portland District Court.4 If the Defendant were theprimary residential parent in Washington, she could seriously disrupt Milas access to her father.Accordingly, the Plaintiffs Motion to Modify and Objection to Defendants Intended Relocationis granted in part, and denied in part.4See Board of Overseers of the Bar v. Michael 1. Waxman, Esq., Supreme Judicial Court,Docket No. Bar-l 0-5, at IV, paragraph 92. 4
The court finds at this time that it is in Milas best interests for her primary residence to bewith the Plaintiff, and the court so orders. The court also finds that it is in Milas best interestsfor the parties to share parental rights and responsibilities. The court expects the Plaintiff to dowhat the Defendant has not done since the Divorce Judgment was issued: the court expects thatthe Plaintiff will inform the Defendant of all important events and circumstances in Milas life.Toward that end, the Plaintiff shall be required to provide at least weekly e-mails to theDefendant about the events and activities of each week. The court also expects that, with theexception of any emergency, the Plaintiff will involve the Defendant in all important decisionsthat are made regarding Mila. The Plaintiff shall have discussions with the Defendant by way ofe-mail well prior to any important decision being made concerning Mila, so that the Defendantsviewpoint can be timely and fairly expressed. The Plaintiff shall carefully, conscientiously andfairly consider the Defendants views regarding any important decision concerning Mila.Likewise, the Defendant shall carefully, conscientiously and fairly consider the Plaintiffs viewsregarding any important decision concerning Mila. Ideally, these important decisions should bearrived at by agreement, whenever possible. In the event that the parties cannot come to anagreement on any important decision regarding Mila, the Plaintiff shall make the final decision.The Plaintiff shall hold Milas passport. Milas visits with the Defendant ought to be frequent and plentiful. Those visits shall takeplace in Maine on the first, third and fourth weekends of each month, from Friday throughSunday. The exact timing of pick-up and drop-off shall be determined by the parties, and willdepend entirely on the partiesschedules, particularly that of the Defendant, since she will betravelling from Washington, DC. These visits are extremely important, and the parties arereminded that they ought to be extremely respectful of, and accommodating with each otherregarding pick-up and drop-off times. On one of these weekends during each two-month period,Mila shall visit the Defendant in Washington, DC, provided at least one of the partiesaccompanies her during her round-trip. The Defendant shall cover all of the costs of the travelnecessary to accomplish these visits. Mila shall spend Christmas vacation in even years with the Plaintiff and she shall spendChristmas vacation in odd years with the Defendant. Mila shall spend Thanksgiving vacation in odd years with the Plaintiff and she shall spendThanksgiving vacation in even years with the Defendant. 5
When Mila enters school, she shall spend February vacation in odd years with the Plaintiffand she shall spend February vacation in even years with the Defendant. When Mila enters school. she shall spend April vacation in even years with the Plaintiff andshe shall spend April vacation in odd years with the Defendant. Mila shall spend Easter weekend in odd years with the Plaintiff and she shall spend Easterweekend in even years with the Defendant. This Easter weekend schedule shall supersede thepreviously mentioned regular weekend schedule in the event of a conflict. Each summer, Mila shall spend two separate periods of a consecuti ve two weeks with theDefendant. Prior arrangements for these visits shall be made by the parties at least one month inadvance of each two week visit. CHILD SUPPORT The court has made certain findings regarding the parties incomes and Parental SupportObligations set forth in the Child Support Worksheet which is attached and incorporated byreference. The attached Child Support Order and Immediate Income Withholding Order are alsoincorporated by reference. Plaintiff shall claim Mila as a dependent for Federal and State Income Tax purposes untilshe no longer meets the eligibility requirements for Plaintiff to receive any associated tax credits. The Defendant shall maintain a term life insurance policy in the face amount of $50,000for the duration of any child support obligation under this Order. The Defendant shall pay forthe cost of the annual premium. The Defendant shall name the Plaintiff as sole beneficiary of thepolicy with Mila as beneficiary should the Plaintiff not survive the Defendant. This policy shallbecome effecti ve no later than thirty days after the date of this Order and the Defendant shallprovide to the Plaintiff an annual Certificate of Insurance on or before the 30th day and thereafteron or before each annual renewal date the obligation is in place. 6
All of the provisions of the courts previous Judgement and Orders that are n01inconsistent with the terms of this Order shall remain in full force and effect. All other pendingMotions are denied. The Clerk is requested to incorporate this order by reference on the docket at the directionof the Court pursuant to M.R.Civ. P. 79(a). Judge, District Court
STATE OF MAINESUPERIOR COURT DISTRICT COURT , ss Location PortlandDocket No. Docket No. PM-08-S10 Igor Malenko Plaintiff v. CHILD SUPPORT ORDERLori Handrahan Defendant This Child Support Order is made a part of the D Divorce Judgment D Protection from Abuse Order D Parental Rights andResponsibilities Judgment D Paternity Judgment D Case Management Order ~ Other Order on Motion to Modi~~ of this date 0 dated ---------.------ Pursuant to 19-A M.R.S.A. §2006, the court has made certain findings of fact concerning the current parental supportobligation as computed under the presumptive application of the guidelines. Those findings are contained within the child supportworksheet which is attached and incorporated. _______ LO~~ Handrah~ -- is ordered to pay to Ig._o_r_M_a_l_.e_n_k_o ----- Name of obligor Name of obligeethe sum of $ 368. 80 per week toward the support of:Childs Name Date of Birth Childs Name Date of Birth Mila Malenko 11/29/2006 The child support payments are to start 02/04/2011 . If a child receives publicassistance, the child support payments for that child shall be made to the State of Maine Department of Health & Human Services. D The Court finds that the child(ren) currently receive(s) dependent benefits as a result of the obligors disability. In anymonth that the benefits received by the child(ren) meet or exceed the total monthly support obligation, the obligor shall receive a creditfor the total amount of support due. To the extent that the monthly benefits received by the child(ren) do not satisfy the obligorsmonthly support obligation, the obligor shall pay the monthly support obligation minus the credits received by the child(ren). Theobligor shall not be given credit toward past or future obligations for benefits which exceed the current monthly support obligation. D The child support obligation shall remain in effect until (further order or untilexpiration of any underlying Protection from Abuse Order, whichever occurs first). QI The child support obligation shall continue for each child until that child reaches the age of 18; provided, however, that ifthe child has not graduated, withdrawn, or been expelled from secondary school as defined in Title 20-A, the child support shallcontinue until the child graduates or reaches the age of 19, whichever occurs first. flI Igor Malenko shall maintain health insurance for the benefit of the minorchild(ren) ifit is available at a reasonable cost, which means health insurance that is employment-related or other group healthinsurance. Proof of such insurance must be furnished to the other party within 15 days. If the child(ren) is (are) recipients of publicassistance, proof of such insurance shall be provided to the Department of Health & Human Services within 15 days. o Any uninsured medical and dental expenses of the child(ren), in excess of$250 per calendar year, shall be paid in thefollowing manner: 80% % by the obligor and 20% % by the obligee. The first $250 of annual uninsured medicalexpenses shall be paid by the obligee. D The child support obligation is based on the fact the parents are providing substantially equal care for their child(ren).Day care costs, health insurance premiums, and uninsured medical expenses shall be shared as follows: % to be paid by thehigher income parent and % to be paid by the lower income parent. D The child support amount set forth above has beenadjusted to reflect each partys proportionate share of these costs. D Each partys proportionate share will be paid as follows:FM -132, Rev. 09/05
If the Maine Department of Health & Human Services provides support enforcement services and/or if the obligor is requiredto pay child support to the Maine Department of Health & Human Services, the obligor shall notify the Department within 15 days ofthe date of this Order of the following: 1. The obligors current address; 2. The name and address of the obligors current employer,and 3. Whether the obligor has access to health insurance at a reasonable cost, and, if so, the health insurance policy information. Within 15 days of any change in the obligors current address, any change in the name or address of the obligors currentemployer, or any change in the health insurance policy information, the obligor shall notify the Department of the change. Failure toreport a change of address or employer to the Department within 15 days of such change is a civil violation for which a forfeiture notto exceed $200 may be adjudged for each violation. Any party to this action may ask the court to review the amount of child support and if appropriate, to modify it in accordancewith the states child support guidelines. To start this process, a party must file with the court a Motion to Modify. If it has been lessthan 3 years since the child support order was issued or modified, the party must prove a substantial change in circumstances. o There is (are) child(ren) who is (are) 10 or II years of age. Beginning . _when ~ reaches the age of 12 years, the child support will be $ _per week. Beginning when reaches the age of 12 years,the child support will bc $ per week. o All of the minor children are age 12 or older. As long as there are children entitled to parental support,that sum is $ per week. As long as there are children entitled to parental support, that sum is$ per week. When only one child is entitled to parental support, the s urn is $ per week. D The amount(s) set forth above for child support constitute(s) a deviation from the presumptive amount required by thechild support guidelines. In this case the court finds that a child support ordcr based on the guidelines would be inequitable or unjustfor the following reasons: (Setforth the reasonsfor the deviation.) _ o The Immediate Income Withholding Order of this date attached hereto is incorporated by reference. D No Immediate Income Withholding Order shall issue because: D The court finds there is good causc not to issue such an order for the following reasons: _ o The parties have submitted and the court has approved a written agreement providing for an alternative arrangement. The clerk is directed to make the following entry in the civil docket pursuant to M.R.Civ.P. 79(a). "Child Support Orderfiled. Lori Handrahan ordered to pay child support of $ 368.80 per week. This::::" "Or"]:otL: by"r,,,",, " ,", p,,fi, ""0" O"h~ Judge IfJf?L- s::.__ / Justlco+Ma-glstTate --A True Copy. Attest _ Clerk Important Notice to the PartiesAny party who wishes to appeal a Magistrates final order shall file an objection to the final order in the District Court within 21 daysof the entry of that order. The court clerks office has a form available for this purpose. If no objection is filed, the parties aredeemed to have waived their right to object and to appeal, and the Magistrates final order shall become the judgment of the court andhave the same effect as any final judgment signed by a District Court judge. No appeal may be taken from a judgment entered withoutobjection to the final order of a Magistrate. An appeal from a judgment entered after objection shall be taken in accordance with theMaine Rules of Appellate Procedure.Anv Dartv who wishes to a eal within 21 davs.DFVIFM -132, Rev. 09/05, pg. 2
STATE OF MAINESUPERIOR COURT DISTRICT COURT , ss Location PortlandDocket No. Docket No. PM-OS-SID Igor Malenko Plaintiff IMMEDIATE INCOME v. WITHHOLDING ORDER Lori Handrahan DefendantName of Obligor: Lori HandrahanObligors Support Enforcement Member Number (ifknown):, _Name of Obligee: Igor MalenkoWeekly Withholding Amount to Satisfy Current Support Obligation:,--"-3-:..6-:..S-:...-:..S-:..0 _ This Immediate Income Withholding Order, issued pursuant to 19-A M.R.S.A. § 2651 et seq, is incorporated in the DivorceJudgment or Order of this court of this date. This Order may be used to collect current support and past-due support.To the payor of income to the obligor from any source: It is ORDERED that: I. Beginning on the next date the obligor is usually paid after you receive a copy of this Order, you shall withhold eachweek from any amounts due the obligor: A. The above stated weekly withholding amount to satisfy the current support obligation; B. An additional amount to be applied toward any past-due support owed by the obligor, if a notice of such anadditional amount is served on you with a copy of this withholding order; and C. A fee of $2.00 per week in addition to the amount withheld for child support. The fee shall be sent to theDepartment of Health & Human Services. 2. Within 7 days after the next usual date the obligor receives payment and each payment date thereafter, you shall send theamount of any withholding, along with the $2.00 fee and the obligors support enforcement member number, if known, to:Department of Health & Human Services, IV-D Cashier, Box 1098, Augusta, ME 04332. Notice is hereby given that the amount ofthe withholding shall not exceed the limitations imposed by the United States Code, Title IS, § I 673(b ). 3. Within 15 days after such time as you are no longer paying income from any source to the obligor, you shall notify theDepartment of Health & Human Services in writing of such termination, giving the obligors name, the obligors last known address,the obligors Social Security number, the obligors support enforcement member number, the date of termination, and, if known, theidentity of any new payor of income to the obligor. This Order shall remain in effect until (I) terminated by order of the court; (2) you are released in writing from its terms bythe Department of Health & Human Services; or (3) if this order was implemented by the obligee as a private withholding action, youare released in writing from its terms by the obligee. Knowing failure of a payor to withhold or send support payments required by this Order or to notify in the event oftermination of the relationship is a civil violation and may subject the payor to civil liability, iJiciuding costs, attorneys fees,and a $100 civil penalty for each such knowing failure. A payor who discharges an obligor from employment or refuses toemploy an obligor or who takes disciplinary action against an obligor employed by the payor or who otherwise discriminatesagainst the obligor because of the existence of an income withholding order or the obligations imposed upon the payor by thisOrder is subject to a civil penalty not to exceed $5,000 and is also subject to a civil action by the obligor for compensatory andpunitive damages, together with attorneys fees and cOllrt costs.
SUPERIOR COURT STATE OF MAINE DISTRICT COURT ,ss. Location Portland Docket No. _ Docket No. FM-08-510 Igor Malenko Plaintiff vs. CHILD SUPPORT WORKSHEET Lori Handrahan Defendant I. a. Primary care provider (parent children live with most of the time): Gl Plaintiff 0 Defendant Both 0 If parents provide substantially equal care, higher income parent should be shown as the non-primary care provider. b. Parent providing health insurance for the children: !;iJ Plaintiff 0 Defendant Neither 02. Childs Name Date of Birth Childs Name Date of Birth Mila Malenko 11/29/2006 Yearly Amounts Primary Care Provider Non-Primary Care Provider Combined Income o Self-support reserve o Below poverty level 3. Gross income $ 27,000.00 $ 105,000.00 4. Minus other obligations a. Support paid to former spouse a. a. b. Support paid for other children b. b. c. Other children living with non-primary care c. provider (See instructions on reverse side. S. Total of 4a, b, & cO. 00 0.00 6. Adjusted Yearly Gross Income a. b. Subtract line S from line 3) 27,000.00 105,000.00 132,000.OCi 7. Share of Gross Income a. b. (Add 6a & 6b)I (Divide each parents income by combined income) 20% % 80% %8. Basic weekly support for all children up to 18 years (or up to 19 years if still in high school) (See instructions on reverse,) a. Total number of children _1 _ b. Number of children ages 0-11 _1 __ multiplied by amount from table 238 = $ 238 c. Number of children ages 12-] 7 _0 __ multiplied by amount from table o = $_0 _ Total (add8band8c): 8.238.009. Weekly health insurance cost for children Name & amount per child per week Mila Malenko $ 23.00 $------- Total: 9.23•0010. Weekly child care expenses Name & amount per child per week Mila Malenko $200.00 $-------- Total: 10. 200.00I I. Extraordinary medical expenses Name & amount per child per week _ $-------- $-------- Total: II. _0_._0_0 _*If parents provide substantially equal care, continue calculations on supplemental worksheet.12.TOTAL WEEKLY SUPPORT OBLIGATION (Add lines 8, 9,10 and II.) 12. 461.0013.WEEKL Y PARENTAL SUPPORT OBLIGATION: a. Primary Care b. Non-Primary Care Provider spends directly $_9_2_._2_0 _ Providers support obligation $~3~6~8~. 8~0~ _ (Multiply line 7a by line 12) (Multiply line 7b by line 12) Health insurance adjustment - _0_._0_0 _ (See instructions on reverse side) avS .i!11ua6ort.3-6S":8 0Date: LL--i/FM-040, Rev. 09105 Iift)-fQefe~dant) (Judge) (Magtst-r.ffi~or)