Lauren B. Strauss v. Andrew J. Strauss (2011)

MEMORANDUM OF DECISION

These parties came to the court seeking a dissolution of their marriage and the matter was tried to the court on Tuesday, February 1, 2011.   The parties were married in Durban, South Africa in 1999 and moved to the United States in 2005.   The testimony was that they left their homeland for this country in the hopes of providing their child James (DOB 10/12/03) with a better life.   A second child, Emma (DOB 2/13/08) was born in Connecticut.   Unfortunately, life in this country did not proceed as the parties had hoped.   The defendant had difficulty finding employment and although he had a good career in the insurance industry in South Africa, in the United States he was forced to take a job in retail sales.   Eventually, he was able to secure employment with Traveler's Insurance but not at the level he had occupied in his homeland.   He was quite unhappy in that position and eventually was fired by his employer.

The plaintiff seems to have fared better.   She found employment in her chosen career of nursing and is now a supervisor at an area nursing home and rehabilitation center.   This turn of events, the wife now being the primary wage earner, seems to have dealt a fatal blow to the marital relationship.   The defendant's testimony, although entirely sincere, was little more than a recitation of his troubles since coming to this country.   He blamed his current problems on his wife, his former employer, his immigrant status and his racial background.   It is not difficult to understand why his wife decided to take the monumental step of seeking to dissolve their marriage of eleven (11) years.

The defendant has been unemployed since May 2010.   His attempt to obtain unemployment compensation was unsuccessful as he was terminated for cause.   In the eight months since losing his job he has not attempted to find new employment, but rather dedicated his time to preparing the marital home for sale and marketing of the home.   His efforts have been unsuccessful and within the last month the defendant agreed with the plaintiff to hire a professional real estate agent to sell their home.   The mortgage is in default, but foreclosure proceedings have not been commenced as of the hearing date.   The plaintiff had supported the marital home with her earnings until she left and moved into her own apartment in August 2010.   The children are living with her and the parties have been successful in working out a reasonable access schedule on their own.

The testimony provided by both parties establishes that when the family left South Africa they completely liquidated their assets and had approximately $80,000 in cash with which to establish their life in a new country.   That amount came approximately two-thirds from the defendant's employment and one-third from the plaintiff.   They used the money to purchase their home, a car and to support the family during periods of no or limited earnings.   Currently, they have no significant assets other than a house that may or may not have any equity, and a 2005 Toyota Matrix.   The plaintiff has a small 401(k), but the undisputed evidence is that the balance represents only her employer's contribution;  she has not been at that job long enough to have a vested interest in the funds.   Each party has approximately the same amount of credit card debt.¹

On questioning by the court, the defendant testified that he made $30,000+ at his most recent employment with Traveler's Insurance.   He indicated that he was not optimistic about obtaining employment in the United States and was thinking that he might have to return to South Africa to earn a living.   When asked what he thought he might be able to earn if he was employed in South Africa he was not able to provide a clear answer.   The defendant cited new affirmative action policies in his homeland that might impede his ability to obtain a position that suited his qualifications.

After reviewing the testimony and the court file, the court makes the following findings of fact.

1. The court has jurisdiction to hear this matter;

2.  The statutory stays have all expired;  the Case Management Date was on May 4, 2010;

3. The allegations of the complaint, including the irretrievable breakdown of the marriage, have been proven to be true.

4. The court finds neither party to be more at fault for the marital breakdown than the other;

5.  Both parents have completed the Parenting Education Program and have resolved the parenting issues in this dissolution;

6.  The defendant is found to have an earning capacity of $30,000 per annum based

on his most recent employment and his professional background and training;  and

7.  Neither party nor the minor children have been the recipients of any state or municipal financial assistance.

The court having heard the instant matter and having reviewed the various statutory criteria, including but not limited to, Connecticut General Statutes §§ 46b-81 and 46b-82, HEREBY ORDERS:

1.  The marriage of the parties is dissolved and each party is now a separate and single person;

2.  The parties are to share the legal and physical custody of the two minor children, to wit:  James (DOB 10/12/03) and Emma (DOB 2/13/08).   The primary residence of the children shall be with the plaintiff.

3. The defendant shall enjoy reasonable and liberal parental access to the minor children and the plaintiff shall facilitate such access to the best of her ability;

4.  The plaintiff shall continue to provide medical and dental insurance coverage for the benefit of the children during their minority if it is available to her through her employment at a reasonable cost.   The provisions of Connecticut General Statute § 46b-84(e) shall apply;

5.  The defendant is to pay child support to the plaintiff for the benefit of the minor children at the rate of $114 per week.   Said amount is based on the defendant's earning capacity of $30,000 per annum and is in compliance with the Child Support Guidelines.   Additionally, he shall pay 23% of all unreimbursed/uncovered medical/dental expenses for the minor children and 23% of all reasonable and necessary child care to allow the plaintiff to be employed.   Payment of said child support shall be suspended until June 1, 2011, or until the defendant becomes employed, whichever first occurs.   The unpaid support shall accrue during the suspension period and when the defendant begins to pay support, he shall pay an additional 20% or $23 per week against the arrearage for a total weekly payment of $137.   Said payment shall be secured by an immediate wage withholding order.   This matter is continued for a hearing on June 1, 2011 to determine the arrearage, if any, as of that date for the purposes of the wage withholding order;

6.  For tax filing purposes, the plaintiff shall claim James as a dependent and the defendant shall claim Emma. If and when only one child is available for a dependency exemption, the parties shall alternate with the plaintiff having the first such opportunity and the defendant the next year and so on;

7.  The court awards no alimony to either party;

8.  The court reserves jurisdiction regarding any post-secondary education for the minor children pursuant to Connecticut General Statutes § 46b-56c;

9.  The marital home located at 31 Atwater Road in Canton, Connecticut shall be sold.   Both parties shall cooperate with their realtor in setting the selling price and shall follow the agent's reasonable recommendations regarding price reductions and other marketing suggestions.   The parties shall share the sale proceeds, if any, equally.   The parties shall share equally any liability stemming from the ownership and/or operation of said property including, but not limited to, unpaid mortgage obligations and/or unpaid taxes.   Utility bills shall be the sole liability of the defendant.   The court will retain jurisdiction over the sale of the home until such time as the title has passed out of the names of the parties;

10.  The parties shall divide the personal property equitably, but each shall retain ownership, free and clear of the other, of their motor vehicles, bank accounts, deferred income assets and their personal belongings;

11.  With the exception of the mortgage on the marital property, each party shall be solely liable for the financial obligations as shown on their respective financial affidavits and shall hold harmless and indemnify the other.

BY THE COURT

Adelman, J.

FOOTNOTES

FN1. Whether or not there will be a liability resulting from the marital home is not certain at this time as there is a small amount of equity showing on the financial affidavits.   Such a sum would be likely to be exhausted with closing costs from a future sale and, if a real estate commission is involved, would likely end up in a “short sale” situation..  FN1. Whether or not there will be a liability resulting from the marital home is not certain at this time as there is a small amount of equity showing on the financial affidavits.   Such a sum would be likely to be exhausted with closing costs from a future sale and, if a real estate commission is involved, would likely end up in a “short sale” situation.

Adelman, Gerard I., J.