April Araujo v. Quintino Araujo (2010)

MEMORANDUM OF DECISION

The plaintiff who was a resident of Norwich, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on March 23, 2010.   At the time, the defendant was a resident of Norwich, Connecticut.

The court finds that it has jurisdiction and that all statutory stays have expired.

A limited contested trial was held before the undersigned on Sept. 9, Oct. 15, and Nov. 5, 2010.   Both parties appeared at trial and were represented by counsel.

The court has fully considered the criteria of General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that the following facts were proven by a preponderance of the evidence:

1. The plaintiff and the defendant whose maiden name was Kolodnicki were married on Oct. 12, 2003 at Waterford, Connecticut.

2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.

3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.

4. There have been 4 children born to the wife since the date of the marriage namely Isaiah Araujo born January 9, 2000, Elijah Araujo born August 17, 2004, Gianna Araujo born in November 21, 2005 and Anissa Araujo born November 14, 2009.   No other children have been born to the wife since the date of the marriage.

5. Neither party has received assistance from any State or local agency.

6. In addition, the defendant has fathered three other children during the course of the marriage, two living in his native Cape Verde and one living in the New London Connecticut area.   The cause of the dissolution is found to be completely the husband's.

7. During the most of marriage, the husband maintained a successful concrete construction business.   In addition to the marital home, they were able to purchase, improve and rent out a three-family house in Norwich.   Soon after the commencement of the dissolution proceedings, the husband stopped working.   The evidence is conflicting as to the reasons;  the husband claims that all of his work tools and equipment was lost, stolen or sold by the wife who took control of his storage garage and the wife claims that he is simply unwilling to work to support his family or that he works “under the table.”

8. The wife suffered a severe stroke in November 2009.   She was paralyzed and in a coma while hospitalized and later convalesced at the marital residence with the assistance of her extended family members.   During her recovery, she was confined to a wheelchair and partially paralyzed;  he offered little or no financial or parenting help and spent much time partying and socializing with others.   She remains in the marital residence, 9 Clay Ave., Norwich, CT with the four minor children and some extended family members who assist her.   She was out of work until recently when she returned to working as a receptionist at her old hair salon working 20 hours per week at $8.25 per hour.   In addition, she collects $950 per month from Social Security disability and a Social Security stipend for the children in the amount of $460 per month.

9. The husband claims that he is unable to work but that he picks up sporadic jobs from time to time.

10. The marital residence has a fair market value of $200,000 with a $160,000 mortgage or $41,000 in equity but there is $24,000 overdue on the mortgage which is solely in the husband's name.   The wife inherited the 9 Clay Ave. home from her grandmother in 2002 which had no mortgage at the time.   The present mortgages were used for the purchase of the Coit St. investment property and for general living expenses.

There is presently a foreclosure matter pending which requires the husband's participation if the mediation process to save the home is to be possible.

11. The 24 Coit St., Norwich, CT residence has a value of $120,000 with a mortgage of $156,000 and is also in foreclosure.   The husband lives in the first floor apartment and is able to rent out the second and third floors for $600 each per month.

12. There presently exists as marital assets the two homes, the wife's bank account in the amount of $400, the wife's furniture in the amount of $1000, the wife's Acura vehicle, subject to a loan with no equity, the husband's bank accounts in the amount of $150, the husband's BMW X5 motor vehicle worth $2000, the husband's 1993 Ford F-350 truck worth $300, the husband's 1987 Ford F-35 truck worth $200, the husband's 1998 GMC truck worth $200, the husband's 2008 Ford F-350 truck, subject to a loan with no equity and the husband's tools and equipment of unknown value and unknown whereabouts.

The wife recently discovered an entire apartment of new furniture at the husband's residence (Exhibit 3) consisting of a leather sofa, love seat and lounge chair, a sleigh bed, two large wooden bureaus and a night stand, most of which still had the sales tags attached.   The husband claims that he purchased this furniture from a friend for $200 with $40 down and the $160 to be paid on a weekly basis.

13. The parties' debt includes the wife's legal fees of approximately $13,000, the wife's credit cards totaling approximately $11,000 and the Ed's Garage oil bill in the amount of $2450, the Internal Revenue Service bill in the amount of $2800, the husband's legal fees in the approximate amount of $7,000, fees due to the Department of Motor Vehicles on the wife's Acura vehicle in the amount of $600 and a personal loan of the husband's in the amount of $3800.

14. The parties stipulated and agreed that the wife would have sole custody of the minor children and the husband would have reasonable visitation rights on each Sunday from 3 p.m. to 8 p.m. The husband has a history of disappointing his children by failing to regularly exercise his visitation rights.

15. The wife has been forced to expand extraordinary sums of money and time in an effort to find assets and financial records which the husband refused to turn over or disclose.   The parties have returned to court on numerous occasions in an effort to force the then self-represented husband to comply with disclosure and production.   The court finds that the husband is guilty of egregious litigation misconduct and that the need for extensive legal fees was caused by his behaviors.   The husband withdrew approximately $40,000 from their bank accounts on or about March 2010 and is unable to convincingly explain its whereabouts except to claim that he gave half of it to a business acquaintance who then left for the Azores in repayment of an old debt and that he spent the balance.

16. The wife is 36 years old and the husband is 38 years old.   The wife was previously a hairdresser and is now hoping to cobble together an income from working as a receptionist and a hairdressing instructor.   The husband is in good health and has a long history of working in the concrete construction business earning good money, some of which was taxed and some of which was undeclared.

17. The husband is under a pendente lite child support and alimony order to pay $600 per week despite the fact that he shows little or no income.   Surprisingly, he has made almost all of the payments, albeit often late, and presently has an arrearage of $1400, having been behind $2600 but having made a $1200 payment on October 17, 2010.

18. The court finds that if this were an intact family, it is likely that the parents would have provided post-majority educational support to the children so the court will retain continuing jurisdiction regarding post-majority educational support pursuant to CGS § 46(b)-56c.

19. The wife has presented much circumstantial evidence, sufficient to prove, by a fair preponderance of the evidence, that there are assets in the possession of the husband and that he has an earning capacity of $52,000 per year or $1000 per week.

20. The court finds that the wife's present income of $124 per week and her Social Security income of $226 per week is her actual earning capacity at this time.

21. The court finds the defendant husband not credible in any of his testimony.

LEGAL DISCUSSION

“The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”   Gervais v. Gervais, 91 Conn.App. 840, 841, cert. denied, 276 Conn. 919 (2005).

Regarding the distribution of property, Connecticut General Statutes § 46b-81 states:

In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of Section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

The court in Lopiano v. Lopiano, 247 Conn. 356, 363-64 (1998) held:

“The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may ‘assign to either the husband or the wife all or any part of the estate of the other ․ In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party ․ shall consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.’  ․ This approach to property division is commonly referred to as an ‘all-property’ equitable distribution scheme.   See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01[2][a][v], p. 37-19.  [Section 46b-81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power.   A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series:  Family Law and Practice with Forms (1991) § 27.1, pp. 398-400.”  (Emphasis in original.)   Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).

The court in McKenna v. Delente, 123 Conn.App. 146 (2010) observed:

“A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties' assets.  Casey v. Casey, 82 Conn.App. 378, 386-87, 844 A.2d 250 (2004);  Werblood v. Birnbach, 41 Conn.App. 728, 735-36, 678 A.2d 1 (1996).  “[B]ecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.”  Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993).   Furthermore, “the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property.  Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).”  Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004).   Id., 162.

The court in Krafick v. Krafick, 234 Conn. 783 (1995), held that the purpose of § 46b-81 was “to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute-directly and indirectly, financially and nonfinancially-the fruits of which are distributable at divorce.”  Id., 797-98.  Ranfone v. Ranfone, 103 Conn.App. 243, 250-51 (2007).

The court in Picton v. Picton, 111 Conn.App. 143 (2008) held that “an equitable distribution of property should take into consideration [each spouse's] contributions to the marriage, including homemaking activities and primary caretaking responsibilities”;  id., 311;  and that “a determination of each spouse's contribution within the meaning of ․ § 46b-81 includes nonmonetary as well as monetary contributions.”  Id., 153.

Regarding the awarding of alimony, Connecticut General Statutes § 46b-82 states:  “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to § 46b-81.   The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of Section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to Section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income ․ Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007);  Eliah v. Eliah, 99 Conn.App. 829, 833 (2007).  “It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations ․” Weinstein v. Weinstein, 280 Conn. 764, 772 (2007).   Moreover, “lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate.”   Carasso v. Carasso, 80 Conn.App. 299, 304 (2003), cert. denied, 267 Conn. 913 (2004).”  Milazzo-Panico v. Panico, 103 Conn.App. 464, 468 (2007).

“In a marital dissolution proceeding, the court may base financial awards on earning capacity rather than actual earned income of the parties ․ While there is no fixed standard for the determination of an individual's earning capacity ․ it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health ․ [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable.   Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings.”  Watrous v. Watrous, 108 Conn.App. 813, 822 (2008).

“[A] court should have the discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct ․” Ramin v. Ramin, 281 Conn. 324 (2007).

ORDERS

The court orders the following:

1. The wife shall have sole legal and physical custody of the children.

Nonetheless, the mother shall allow any attending physician to use the best available medical treatment, including blood transfusions, if medically necessary.   The father may exercise visitation each Sunday from 3 p.m. until 8 p.m. or any other mutually agreeable time.   He shall also be entitled to his birthday, the children's birthdays, Christmas Day, Father's Day and Thanksgiving from 10 am to 4 p.m. so long as these visits don't interfere with school.   He shall be entitled to reasonable telephone contact.   If he fails to regularly communicate and visit with the children, the wife may unilaterally discontinue those visits as the disruption and disappointment to the children is found to be harmful to them.

2. The husband shall pay child support to the wife in the amount of $240 per week and $28 per week on a $1400 arrearage and the parties shall divide any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or work-related day care costs, 37% payable by the husband and 63% payable by the wife.   These figures are based on the guidelines showing the wife earning $650.00 per week and the husband earning $1,000 per week gross.

3. The husband shall pay alimony to the wife in the amount of $200 per week.   Said alimony will terminate upon the sooner of ten years or death of either.   It is modifiable as to amount only.

4. The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to CGS sec 46(b)-56c.

5. Each party will maintain medical and dental insurance for the benefit of the minor children if available through their employment at a reasonable cost not to exceed 7 1/2 percent of their net pay.   If it is not so available, the parties will maintain the children on HUSKY and share the expense equally.

6. The husband shall quitclaim his interest in the 9 Clay Ave. Norwich Connecticut home.   The wife shall be responsible for all costs maintenance insurance and mortgages associated with that property.   The husband shall attend each and every foreclosure mediation session and shall file on appearance in that matter.   He shall cooperate in every way in the wife's efforts to mediate or negotiate a plan to avoid the foreclosure.

7. The wife shall quitclaim her interest in the 24 Coit St., Norwich, Ct home.   The husband will be responsible for all costs, maintenance, insurance and mortgage associated with that property and hold the wife harmless for any expenses associated there with.

8. The husband shall retain his 1993 Ford F-350 truck, 1987 F35 truck, 1998 GMC drop, 2008 Ford F-350, trailer, Bobcat, new furniture and tools of his trade.   He shall be solely responsible for all expenses associated there with.

9. The wife shall retain Acura automobile and BMW X5 automobile.   She shall be solely responsible for all expenses associated there with.

10. The husband shall be solely responsible for the IRS debt, his legal fees, his personal loan, the Ed's Oil bill and all vehicle taxes due to any municipality and fees due to the Department of Motor Vehicle relating to any vehicles

11. Each shall keep their own bank accounts and pay their own credit card bills.

12. The wife will take all four tax dependency exemptions for the children of the marriage each year.

13. Each shall pay their own counsel fees but the husband will pay to the wife the sum of $5,000 toward for legal fees within 90 days.

14. The husband shall pay to the wife $10,000 within 90 days as 1/4 of the sum which he withdrew from the family savings during the course of this litigation.

15. The payments and obligations referenced in these orders are intended to be family support/maintenance payments within the meaning of Sections 523(a)(5) and 523(a)(15) the United States Bankruptcy Code and not dischargeable in bankruptcy.   Each party shall be solely responsible for all debts they have been ordered to pay and they shall hold harmless and indemnify the other thereon.

16. The defendant's motion to modify is granted as of this date.

17. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.