Maria Rosario v. Sotero Rosario (2010)

MEMORANDUM OF DECISION

The parties were married on November 19, 1988 in East Haven Ct. Three children were issue of the marriage.   The eldest child was born August 6, 1990, the second child was born on February 9, 1995 and the youngest child was born on December 20, 1996.   The defendant husband vacated the marital home in March of 2008 as a result of the plaintiff obtaining a restraining order against the defendant.   The three children initially remained in the marital home with the plaintiff but the house was foreclosed upon in March of 2009, at which time the two minor children went to live with the defendant and the oldest child and plaintiff moved into the plaintiff's sister's basement.   In November of 2009 the nineteen-year-old child elected to go live with the defendant and although the plaintiff secured her own rented two-bedroom, two-bathroom condominium in January of 2010, all three children continue to reside with their father in his rented residence.

The defendant paid child support when the children resided with the plaintiff however no child support has been provided by the plaintiff to the defendant nor was any pendente lite child support order sought by the defendant.

The plaintiff has worked varying number of hours in multiple hair salons as a hair stylist/colorist/educator during the course of the marriage.   The defendant husband has obtained and relinquished numerous employments during the marriage.   Initially he was employed as a judicial sheriff but he terminated his employment after a dispute with a superior.   After being unemployed for three months the defendant obtained employment with Burns Security but left after two or three years for a better paying job with Dunbar Armor Security.   While employed at Dunbar, the defendant suffered a shoulder injury and remained out of work collecting workers' compensation for two years.   He returned briefly to Dunbar but because he could not do what was needed he became unemployed.   Five to six months after permanently leaving Dunbar the defendant went to work at JC Penneys where he remained employed for six years.   Both parties were simultaneously employed at JC Penneys until 2004 when the defendant filed a one point five million dollar discrimination lawsuit against J.C. Penneys alleging wrongful discharge.   The plaintiff terminated her employment from J.C. Penneys either because she was advised to do so by the attorney then representing the defendant in the lawsuit or because she feared retaliation by the company.¹  The plaintiff obtained employment at a Meriden hair salon.   The defendant remained unemployed during the pendency of his federal lawsuit which finally resolved in 2006 after a jury trial in which the defendant failed to receive any monetary award.   In 2006 the defendant was hired for his present position with the Hamden Board of Education as a school security person.   Because the defendant's employment with the Hamden Board of Education is limited to the school year the defendant obtained secondary employment, initially as a child caseworker at the Children's Center in Hamden but after one year at the Children's Center the defendant left there and commenced per diem employment with a cleaning service company.   The defendant estimates that during the school year between the two jobs he can work up to 75-80 hours a week.

The plaintiff testified at length about the degree of verbal, emotional and physical violence she was subjected to by the defendant during the course of the marriage.   The plaintiff alleges that there was a fight every day in the marital home.   The plaintiff testified the defendant repeatedly threatened the use of and/or displayed his 9 mm Berretta handgun during their disputes.   The plaintiff also testified to the defendant's affinity for alcohol particularly during the pendency of the federal lawsuit.   The plaintiff claims the level of domestic abuse/violence that permeated the marriage either caused or exacerbated the plaintiff's physical ailments including but not limited to debilitating vertigo, headaches and stomach pains.

The defendant denies alcohol abuse, he denies threatening the plaintiff with any weaponry or perpetrating any physical abuse upon the plaintiff.²  The defendant characterizes their frequent domestic disputes as “heated arguments” which would consist of a verbal exchange between the two parties of loud, angry and profane language.   The defendant further asserts the plaintiff was often the unprovoked instigator of their heated arguments.

The parties have debt but no assets.³  The plaintiff seeks alimony of $250/week.   The defendant claims he cannot afford to pay the plaintiff alimony.   Specifically, he argues that he presently works two jobs and only marginally manages to provide for the parties' children and therefore has no additional funding available for alimony.

The court finds that it has jurisdiction over this dissolution proceeding.   All statutory stays have expired.   The court finds that the marriage has broken down irretrievably.   The marriage is hereby dissolved and the parties are declared to be single and unmarried.   After considering all of the statutory criteria set forth in C.G.S. § 46b-82, as to the assignment of alimony, C.G.S. § 46b-84, as to child support, C.G.S. § 46b-81, as to assignment of property and transfer of title, C.G.S. § 46b-66a, as to the conveyance of property, C.G.S. § 46b-56c as to post-secondary educational support orders and C.G.S. § 46b-62, as to counsel fees, as well as the applicable case law and the evidence presented at trial, the court enters the following additional orders:

Parenting Plan

The court hereby approves the parenting plan as agreed to by the parties.

Both parties shall share joint legal custody of the minor children with principal residence of the minor children to be with defendant father.

The plaintiff mother shall have reasonable and liberal visitation.

Each parent shall have reasonable, free and unfettered phone access to the minor children and the minor children shall have reasonable, free and unfettered phone access to the parents.

Both parents shall work toward developing and maintaining a healthy, positive relationship based on love and respect between the children and the parents.

Neither parent shall undermine the children's relationship with the other parent nor allow or permit third persons to so undermine the children's relationship with the other parent.

The parents shall refrain from denigrating either parent in front of the children.

The parties shall refrain from using the children as go-betweens and as a source of information relative to each parent.   The parties shall parent the children on holidays as follows:

Mother to parent the children in ODD years beginning 2010 for Easter, Thanksgiving, Christmas Eve. Mother shall parent the children on Christmas Day on EVEN years commencing 2011.

Father shall parent the children on EVEN years beginning 2012 for Easter, Thanksgiving, Christmas Eve. Father shall parent the children on Christmas Day in ODD years beginning 2011.

The mother shall have one uninterrupted week during the children's summer break from school.   Notice shall be given the father of such designated week thirty days in advance of said week.

Child Support

The court accepts the plaintiff's proposed child support guideline worksheet for purposes of determining the plaintiff's presumptive child support obligation.   The plaintiff is hereby ordered to pay to the defendant $135/week in child support.

The plaintiff shall claim the eldest minor child as a dependent and the defendant shall claim the young minor child as a dependent for tax purposes.

Health Insurance

The defendant shall maintain health insurance for the minor children for as long as it is available through his employer at a reasonable cost.   In the event that health insurance is no longer available through his employer at a reasonable cost both parties are responsible for ensuring the children are medically insured either though a private insurance policy or through Husky plan.   The plaintiff shall be responsible for thirty six percent and the defendant for sixty four percent of any un-reimbursed or out of pocket medical, dental, orthodontic or psychiatric expenses.

Each party shall be responsible for obtaining and maintaining their individual health insurance.   If the plaintiff chooses to COBRA the defendant's medical insurance he shall cooperate with such process but the plaintiff shall be responsible for any expenses associated with obtaining and maintaining said COBRA health insurance coverage.

Post-Secondary Educational Support Orders

The court concludes that had the parties remained an intact family the parties would have contributed to the children's post-secondary educational costs.   The court hereby retains jurisdiction of said issue.

Alimony

The court concludes the defendant was verbally and emotionally abusive toward the plaintiff during their marriage.⁴  Not surprisingly, the verbal and emotional abuse that permeated the parties' marriage repeatedly centered around finances.   The court concludes that neither party wanted the responsibility of being the primary or sole financial provider during the marriage.   Furthermore, when one of the parties was not working or working less hours than the other thought acceptable, the other party harbored anger and/or resentment which invariably escalated and perpetuated the ongoing martial verbal and emotional discord.   Although both parties had periods of unjustified unemployment or underemployment the defendant's employment history is more glaringly deficient than the plaintiff.   Specifically, the defendant's decision to remain unemployed during the protracted period of time in which the lawsuit remained pending was at great cost, both financially and emotionally to the family.   The court acknowledges the plaintiff's decision to leave JC Penneys compounded the family's already existing financial woes but notes she obtained replacement employment in a salon.   The parties' departure from JC Penneys ultimately resulted in them exhausting their 401k accounts and stock accounts as well having to ask relatives for monetary support in an attempt to meet their routine financial obligations.   The defendant's belief that he would prevail and receive over a million dollars in his lawsuit simply did not justify his two-year hiatus from the work force.   Clearly, the mounting financial pressures that continued to bear down on the plaintiff as she tried to continue to work in yet another salon, as well as the defendant's ongoing verbal abuse, contributed to the plaintiff's physical issues.   The defendant lacked any insight, empathy or understanding of the plaintiff's emotional and psychological fragility.   His chronic responses to her somatic complaints were steeped in disbelief, intolerance and disgust which only served to exacerbate the plaintiff's physical and emotional problems and reinforce her sense of being victimized by the defendant.   Simply put, said dysfunction, when combined with the defendant's self-imposed unemployment during the pendency of the lawsuit, left the plaintiff in poorer economic shape than the defendant.   Presently the plaintiff reports a net income of approximately $520/week and the defendant reports a net income of $803/week.   Although the court acknowledges the defendant is working two jobs now, the historical work record of these two parties during their marriage, when viewed in light of the present disparity in their net income and the tumultuousness of their relationship dictates the plaintiff be awarded rehabilitative alimony.   The defendant shall pay $100/week in alimony to the plaintiff for four years.   The alimony order is nonmodifiable upward as to term.   The defendant shall receive no alimony from the plaintiff.

Debt

The plaintiff reports debt in excess of $48,000 and the defendant reports debt of $8,000.   Forty thousand of the plaintiff's reported debt stems from various monies provided to the parties by the plaintiff's sister during the course of the marriage.   No promissory note exists regarding the sister's conveyances of money to the parties.   The plaintiff testified the sister expects to be repaid but the defendant testified that the sister has represented to him that she does not require repayment.

The court credits the defendant's testimony and therefore makes no orders regarding the forty thousand dollars the parties received from the plaintiff's sister.   Because each party reports approximately the same amount of debt (absent the forty thousand) each shall be solely responsible for the remaining debts listed on their financial affidavit and indemnify and hold the other party harmless.⁵

Automobiles

Each party shall solely possess their respective vehicles and indemnify and hold harmless the other party from any costs associated with said vehicles.

Attorney Fees

Each party shall be responsible for their own attorneys fees.

Bernadette Conway, Judge

FOOTNOTES

FN1. The defendant fired the initial attorney hired to represent him in the lawsuit..  FN1. The defendant fired the initial attorney hired to represent him in the lawsuit.

FN2. The defendant is proficient in and has taught martial arts..  FN2. The defendant is proficient in and has taught martial arts.

FN3. Both parties had acquired a 401k plan and stock plan while employed at J.C. Penneys.   Apparently the parties exhausted their accumulated funds during the course of the marriage..  FN3. Both parties had acquired a 401k plan and stock plan while employed at J.C. Penneys.   Apparently the parties exhausted their accumulated funds during the course of the marriage.

FN4. Although alleged, the court concludes physical abuse was not proven..  FN4. Although alleged, the court concludes physical abuse was not proven.

FN5. In arriving at the distribution of the debt the court has taken into consideration the fact that the plaintiff has paid no child support since March of 2009 as to the two minor children..  FN5. In arriving at the distribution of the debt the court has taken into consideration the fact that the plaintiff has paid no child support since March of 2009 as to the two minor children.

Conway, Bernadette, J.