Lisa Mostafa v. Amr Mostafa (2010)

MEMORANDUM OF DECISION

This dissolution of marriage came before the court on July 15, 2008.   The matter was returnable to the judicial district of Fairfield at Bridgeport.   It was referred to the Regional Family Trial Docket for trial.   While the matter was tried as a fully contested matter, both parties requested some form of joint legal custody as proposed in their respective final orders.   Both the plaintiff and the defendant were represented by counsel and the children's interests were represented and protected by a guardian ad litem.

The issues before the court focused on the children's access schedule with each parent, whether the defendant should be permitted to take the children to Egypt, whether the child support guidelines applied or not, whether an earning capacity should be imputed to the defendant, whether alimony should be ordered in favor of the defendant, a disposition of the marital estate, attorneys fees and other attendant issues.

The rancor between the parties' attorneys did nothing to help elevate the level of professionalism in the case or calm the tension between the parties.   This is most unfortunate.

The plaintiff's counsel was in flagrant violation of the trial management orders, which occasioned a delay in the trial.   The flagrant violation was deferred to the end of the trial for purposes of the court to determine whether any sanctions should be ordered against the plaintiff's counsel.

Substantial claims were made as well that the defendant had dissipated the marital estate immediately prior to the plaintiff's filing of this dissolution of marriage action and during the pendente lite period, the latter of which is a violation of the automatic orders.

As a result of the children being recipients of assistance through the HUSKY program the State of Connecticut's interests were protected by the office of the Attorney General, who, consistent with the standing orders, submitted written proposed orders in advance of the trial.

The financial pendente lite orders entered on August 22, 2008, require the defendant to pay the plaintiff $1,500 per month unallocated and 1/3 of the monthly warehouse rental income after common charges.   The custodial orders entered on that date provided the defendant visitation every other weekend from Friday at 7:00 p.m. to Sunday at 7:00 p.m. and every Tuesday after school until Thursday morning, at which time he was to return the children to school.

At the time of the trial the plaintiff also pursued her motion for contempt (# 196) filed on the first day of trial against the defendant claiming, inter alia, he was not current in his pendente lite obligations to the plaintiff.   The plaintiff failed to sustain her burden of proof as to the pendente lite support section of this motion and it is therefore denied.

As to the claim of a violation of the automatic orders, the plaintiff seeks a finding of contempt regarding the defendant's transfer of the parties' Ford Expedition motor vehicle, withdrawals from his 401(k) account, and payments to credit card accounts, all of which are claimed to be in violation of the automatic orders.   Those claims are addressed as a part of the findings of facts and orders in this case.

The court has carefully considered the statutory criteria for the granting of the dissolution of marriage, orders of custody, visitation and parental access, child support, alimony, health insurance, property orders, counsel fees, guardian ad litem fees, and other attendant orders.   It would serve no useful purpose to re-recite the statutes here.   The court has also considered case law application of these statutes.

Based upon the credible evidence, the court makes the following findings:

The parties were married on July 31, 1993 in New Rochelle, New York. The court has jurisdiction over the matter.   Both parties have resided in the State of Connecticut continuously for more than one year prior to the bringing of this dissolution of marriage action.   There are two minor children that have been born to the wife since the date of the marriage, Kaelyn, born March 30, 1996, and Alia, born July 18, 1998.   No other minor children have been born issue of the marriage and no other minor children have been born to the wife since the date of the marriage.   The family have been recipients of HUSKY health insurance, but no other state or municipal public assistance.   For the reasons described hereinafter, and perhaps best known to the parties, the marriage between the parties has broken down irretrievably with no reasonable hope of its reconciliation.

The plaintiff's age was not put in evidence.   The court estimates she is in her early forties.   She is a registered nurse, having obtained her license and education before she met the defendant.   She is employed at Optimus Health Care. Her gross income is $1,206 per week and her net income is $992 per week.   She works as much overtime as she can garner, trying to make ends meet.

The defendant is forty-seven years old.   He was born in Cairo, Egypt.   He has lived in the United States since 1983.   He is multilingual, speaking English and Arabic.   He is proficient in both languages.   Other than an English-language course he has no college education.   His mother and his father live in Egypt.   He has one-half sibling in Egypt and a brother and sister who live in the United States in close proximity to him.   His brother has children.   They are both employed in the United States, though his sister is on assignment for Xerox in Dubai.

The defendant also owns a commercial warehouse which has a stipulated value of $100,000.   The property needs substantial repairs which have been estimated to be approximately $3,200.   The property has had a past tenant.   Pendente lite it was rented out until July 2009.   Since then there has been no rent, but the defendant has had carrying charges of about $350 per month.   He sought a modification of his pendente lite obligations as a result of this.   The hearing was held on November 12, 2009.   After the hearing the court (Owens, JTR) denied the motion to modify.

The defendant is an over the road mover and driver who is not working as a result of a work-related injury.   He is also HazMat certified.   At the time of his injury he worked for Joyce Van lines as a contractor.   In 1996 he purchased his own sleeper tractor for $52,000.   As of last year the truck was taxed at an assessment value of $11,000.   The defendant believes the truck is worth $2,500 as the result of a statement from a Kenworth truck dealer in Enfield, Connecticut.   The statement was placed into evidence without objection.   His business name is Silver Line Moving, which is a DBA business entity.   Until his injury he operated the business by estimating moving jobs, hiring the casual labor for them, and then participating in and supervising the packing, crating, inventory and moving operation.

On April 26, 2007, the defendant re-injured his left knee, which had been a problem in the past but not prevented him from working.   In June 2007 he had arthroscopic surgery on the knee which was followed up by a course of physical therapy.   The knee has been substantially unimproved since then, and the defendant has been out of work.   Since then he has been living on temporary total disability benefits from workers' compensation.   It has been estimated by an independent medical examiner that he has suffered a 50% loss of the left lower extremity.   This orthopedic surgeon has recommended a partial knee replacement, which would have a six-month post-operative recovery, after which he should be able to return to work at his previous pre-injury ability.¹  The surgeon indicated that a partial knee replacement would result in fifteen to twenty years of excellent use of the knee.   The surgery was recommended in July 31, 2009, and the defendant has failed to have the surgery.   Therefore, had he acted upon the evaluation in July 31, 2009, at or about the time of the trial, he would have been able to work full-time at full capacity, in all likelihood.

Defendant's own physician, rather than the independent physician, opines that it is not likely he would be able to return to his previous employment as a heavy laborer and that he would need a more sedentary type of workload.   This court cannot pick between doctors but notes that the defendant still has not had any surgery and has not attempted to return to work, nor has he sought job retraining in any substantial way.

In 2005 the defendant bought a new Ford Expedition.   On June 8, 2008, he was served with dissolution of marriage papers.   On June 25, 2008, he transferred the title of the Ford Expedition to his brother and ultimately the vehicle went to his sister.   Whatever purpose the defendant had for doing this is not relevant as the transfer was in violation of the automatic orders.   Accordingly, the most equitable way to approach this is to treat it as an asset of the marriage, which the defendant has attributed to him in the equitable division of the marital estate.

The parties own a marital home at 325 Daniels Farm Road in Trumbull, Connecticut.   The only appraisal that was put in evidence for the court indicated that its value as of September 9, 2008, was $425,000.   Approximately a year and a half has elapsed since then, and it has been a period of great market volatility with socially recognized downward trends.   The home is just under 1,500 square feet.   It has three bedrooms.   It is an appropriate place for the children to reside with their mother.   Indeed the defendant does not seek the house to be sold, or ownership of the same, but seeks what he perceives to be his appropriate share of equity in the home.   The children attend school in the Trumbull school district, the town in which the home is located.

Two years prior to the dissolution, commencing in February 2006, the defendant had a certificate of deposit with the value of $150,000.   By May 2006 he had withdrawn $46,000, $23,000 to purchase the Ford Expedition, $10,000 for taxes, and $10,000 for his SEP account.   In June 2006 he liquidated the balance of the CD completely.   At that time $20,000 was put into his People's Bank account and $80,000 was kept in cash in the home, specifically in a closet.   The ultimate disposition of that cash is unknown though the defendant acknowledged that he often used cash to buy gold and to bring installments of $10,000 in cash to Egypt each time he went there.

In 2007 the defendant's trucking business income gross receipts were $60,714.   On his tax return he showed a net profit after expenses of $5,546 from that enterprise.   In that same year the plaintiff earned $46,436 as a registered nurse.   In 2008 the parties filed separately and the defendant's gross receipts were $45,475 with a net profit after expenses of $449.   In that same tax year he deducted $9,900 paid as an unallocated order for the calendar year.

The defendant had $82,000 in his Merrill Lynch SEP account and $47,000 in his Wachovia 401(k) account on June 27, 2008.   Those accounts have been drawn down by him over the pendency of this action.   The SEP had a balance of $55,000 and the 401(k) account had a balance of $30,000 in March 2009.

On June 4, 2009, the defendant was found in contempt of court for failure to pay the sums owed to the plaintiff under the existing orders.   He was ordered incarcerated until payment of a purge amount of $3,750, which was equal to the arrears amount.   On June 11, 2010, that was paid.   On the same date the defendant was ordered to pay $100 in attorneys fees to Attorney Lawler.

In June 2009 the defendant withdrew $20,000 from a tax deferred account:  He used $3,700 of it to purge himself from a contempt finding, $7,000 for legal fees, and $1,700 to fix the Mercedes-Benz he was driving.

In March 2010, during the pendency of the trial, the defendant closed out his Merrill Lynch account of $49,000 and gave the money to his brother, his sister, and his roommate in satisfaction of personal debts.   This is a violation of the automatic orders.   It is not obviated by the assertion that the money he had borrowed was to pay attorneys fees.

The plaintiff has $63,267 of debt which includes a credit card debt of $27,000, family loans of $26,541.61, $8,000 for attorneys fees on another credit card;  and property taxes of $1,725.   All the debt is attributable to the pendente lite period.

The plaintiff has filed for a dissolution of the marriage previously.   In September 2007 she filed an action which was withdrawn three months later.   She had also consulted a divorce attorney in 2005.   On both occasions the plaintiff was spurred to action because of the defendant's yelling and refusal to allow the plaintiff access to financial information and accounts.

On June 6, 2008, the plaintiff sought and received an ex parte restraining order against the defendant.   The allegations included evidence reported at trial that the defendant threatened to kill the plaintiff.   The order continued after agreement on the hearing date, though it was modified to allow contact regarding the children.   The order was continued for two months on December 17, 2008.   Once again the plaintiff sought its continuance and after a contested hearing on February 17, 2009, it was continued until March 27, 2009.

These events followed a marital relationship in which the plaintiff endured years of yelling, swearing and name calling, spitting at her, and slapping of her by the defendant.   The plaintiff also yelled at the defendant over the years and called him derogatory names.

On balance, the court finds that the defendant's behavior is the cause of the breakdown of the marriage.

The litigation over custody centered on two issues:  1) whether the father should be permitted to take the children to Egypt to visit his family, and 2) whether the physical custody orders now in effect are in the best interests of both of the children.   On the latter issue, one of the girls' grades faltered early in this academic year and the mother concluded it must be because of the difficulty in the current access schedule.   Despite this faltering, her report card is still excellent and demonstrates that she is a top notch student.   Further, the guardian ad litem reports that her performance has rebounded since the interim report that troubled both of these parents.

The orders that will be entered by this court will reduce the amount of ‘going back and forth’ between the parents so that the schedule is less wearing on the children.   There was substantial evidence that the children were thriving under a schedule that provides them with significant amounts of time with both of their parents.   The family relations counselor who evaluated this family and the guardian ad litem both recommend an equal sharing schedule.   It has been related through the guardian ad litem that the children want the schedule equal as well.   This is clear evidence to the court that these two children have been drawn into their parents' conflict.   They are fastidiously attempting to be neutral by favoring neither parent.   The schedule that the court has created balances the children's need for substantial, frequent and significant access to both of their parents and their need for a stable schedule that is consistent and not as physically demanding on them as the current schedule.

The Mostafa family has visited Egypt often over the years, both to visit the defendant's parents and to provide a vacation respite.   Since the commencement of this dissolution of marriage the defendant has told the plaintiff that he would take the children to Egypt and she would be allowed to visit them if she is good.   Many people say hurtful things in the tension of a dissolution of marriage, but this statement has caused the plaintiff great anxiety and fear that the children would not be returned to her custody in the United States by the Egyptian government and judiciary if the defendant were to refuse to return the children.   Any parent would have a reasonable apprehension for the well-being of their children and their continued relationship if the other parent were threatening to permanently take them away.   This is heightened when the threat is to take them to a place from which there will be significant difficulty in retrieving them.   The plaintiff's lawyer points to the assertion that Egypt is not a signatory to the Hague Convention and therefore his client will not be protected by it.   The United States is a signatory to that Convention.   Egypt is not a signatory.²  Of course, in keeping with the slipshod way that the plaintiff's attorney approached his obligations to comply with trial management orders no exhibit was identified or indeed offered in support of this assertion;  the proper name of the treaty that plaintiff references is The Hague Convention On Civil Aspects of International Child Abduction.   In any case, even if Egypt were a signatory, it is interesting to note that The Hague Convention does not cover children who have attained the age of sixteen years.   The court concludes that the plaintiff's apprehension of the loss of the children as a result of the defendant's threat is reasonable.   There is nothing preventing the defendant's family from visiting the children here in the United States.

The guardian ad litem was ordered to receive a $5,000 retainer, $2,500 by each on June 4, 2009.   He has received these payments, however he is currently owed a balance of $10,979.63.

The court orders:

1. Dissolution of marriage.

2. Joint legal custody with a parenting responsibility schedule as follows:

During the school year, commencing immediately, the minor children shall be with their father every other weekend from Friday after school until Monday morning when school commences, and every week from Tuesday after school to Wednesday morning when school commences.   The children shall be with their mother at all other times.   Holiday and Vacation orders pre-empt these orders.

During the summer vacation the children shall spend one week at a time with each parent.   The father shall have the first of these weeks which shall begin at 5:00 PM on the first Sunday after the school year has ended.   The weeks shall be demarcated from that point until the following Sunday at 5:00 PM. This summer vacation schedule shall continue until the Sunday before school recommences.   Holiday and Vacation orders pre-empt these orders.

Plaintiff/ Defendant/

Holiday Mother Father

Thanksgiving 2010 2009

Christmas Eve/Christmas Day w/mother

New Year's Eve 2009 2010

New Year's Day 2010 2011

President's Day 2011 2010

Easter Sunday w/mother

Mother's Day w/mother

Memorial Day 2010 2011

Father's Day w/father

Independence Day 2011 2010

Labor Day 2010 2011

Important Muslim Holidays (but not the entire period of Ramadan) w/father

The parties will rotate holiday years with the minor children.   On holidays that the father has the minor children, he will pick them up at approximately 10:00 a.m. and return them at approximately 8:00 p.m. Holiday visitation will take precedence over regular weekly visitation.

School Vacations and Summer Vacation:

a) The parties shall split the Christmas school vacation period (between Christmas and New Year's) with the mother having the children for the first one-half and the father having the children for the second half.

b) The parties shall rotate the winter school vacation period with the father having the children in 2010 and the mother having the children in 2011.

c) The children will spend the February school vacation period with their father and the April school vacation period with their mother.   If there is no February vacation the parties will alternate the spring vacation period.

d) Each parent shall be entitled to spend two (2) consecutive weeks with the children during the summer.   Each parent shall provide written notification to the other parent by April 1st of each year hereafter indicating which two-week period the children will be with him or her during the summer.   Vacation visitation shall take precedence over regular weekly visitation.

3. Neither party shall be permitted to remove the children from the United States without the agreement of both of the parents, which shall be perfected in a writing signed by both of them.   The children's American passports shall be held by the mother when they are not traveling.

4. The father shall pay child support to the wife in accordance with the child support guidelines, in the amount of $121.00 per week.

5. The mother shall maintain health insurance for the minor children so long as it is available through her employment at a reasonable cost as defined by statute, as may be amended from time to time.   If it is not so available, then if it is available to the father at a reasonable cost he shall maintain it;  otherwise, the mother shall ensure that the children are insured under HUSKY health insurance.

6. The mother shall pay 75% of unreimbursed health expenditures for the minor children and the father shall pay 25% of unreimbursed health expenditures for the minor children.

7. The court retains jurisdiction over the issuance of educational support orders for the minor children.

8. No alimony is ordered for either party.

9. The defendant shall quit claim to the plaintiff all of his right, title and interest in and to the property at 325 Daniel Farms Road, Trumbull, Connecticut within 21 days.   The plaintiff shall indemnify and hold the defendant harmless on the payment of the mortgage and real estate taxes on the property.

10. The defendant shall retain as his solely, free of any claim of the plaintiff, the commercial property at 55 Browning Street, Unit 4, Stratford, Connecticut.

11. The defendant shall be the sole owner, free and clear of any claim of the plaintiff, of the business Silver Line Moving and Storage, the 2002 Mercedes ML320 automobile, the 1996 Kenworth tractor trailer and the twenty-three-foot Crownline boat and trailer.

12. The plaintiff shall be the sole owner, free and clear of any claim of the defendant, of the 2004 Honda Accord automobile.

13. The plaintiff shall be the sole owner of the furnishings at the Daniel Farms Road home.   The defendant shall be the sole owner of the furnishings at his rental home.

14. The plaintiff shall be solely responsible for the debts on her financial affidavit and indemnify and hold the defendant harmless regarding the same.

15. The defendant shall be solely responsible for the debts on his financial affidavit and indemnify and hold the plaintiff harmless regarding the same (except the real property taxes on the marital home).

16. The parties shall pay the personal property taxes on the automobile they are awarded under these orders within 21 days.   If any taxes remain on the Ford Expedition they shall be paid by the defendant within 21 days.   Each shall indemnify and hold the other harmless on these orders.

17. The parties shall share equally in the children's extracurricular activities, such as gymnastics, sports, arts, camps, and tutoring, provided they both agree to them.   Neither party shall unreasonably withhold consent to such activity.

18. The defendant shall be entitled to claim Kaelyn as a dependency exemption so long as he is current in his child support for the year for which he seeks to claim her.   The plaintiff shall claim Alia and may claim Kaelyn for any year that the defendant is not entitled to do so by the terms of this order.

19. The defendant shall be the sole owner of his Wachovia 401(k) and Merrill Lynch SEP accounts and the proceeds as they have been removed by him.

20. The defendant shall be the sole owner of his workers' compensation claim, notwithstanding the fact that it was not listed as an asset on his financial affidavit.

21. The defendant shall be the sole owner, to the extent such assets remain his, of all funds he has taken to Egypt that are either held for his benefit or gifted to his father or other family members in Egypt.

22. The guardian ad litem fees of $10,979.63 shall be paid one-half by each party within ninety (90) days.

23. The plaintiff shall pay the defendant $40,000 on the earlier of the following events:  her remarriage, sale of the property at 325 Daniels Farm Road, Trumbull, Connecticut or January 2, 2017.   It shall be secured by a note and mortgage on the marital home which shall subordinate to a first mortgage of up to $250,000.

24. The court finds the defendant in contempt of court and orders him to pay the plaintiff the sum of $800.00 within 21 days for rental income not paid in March through May of 2009.

25. No financial sanctions shall issue against plaintiff's counsel;  the public disapprobation of the description of his poor conduct in this decision is sufficient sanction.

By the Court,

Lynda B. Munro, J.

Judge of the Superior Court

FOOTNOTES

FN1. At 3 months defendant would be available for partial duty work if the doctor agreed..  FN1. At 3 months defendant would be available for partial duty work if the doctor agreed.

FN2. http://travel.state.gov/family/abduction/hague_issues/hague_issues_ 1487.html.  FN2. http://travel.state.gov/family/abduction/hague_issues/hague_issues_ 1487.html

Munro, Lynda B., J.