Ayesha Dewan v. Jafar Nazmi (2011)

MEMORANDUM OF DECISION

The plaintiff wife initiated this action by way of a complaint filed on December 18, 2009, seeking the dissolution of the parties' marriage, based on irretrievable breakdown and intolerable cruelty.

A fully contested trial was held before the undersigned on September 30, 2010, October 4, 2010, October 22, 2010, and February 10, 2011.   The plaintiff was represented by counsel, and the defendant appeared pro se.   Counsel for the plaintiff filed proposed orders.   Both parties appeared and testified at trial.   The court also heard testimony from the Guardian ad litem, Atty. Morra, and other witnesses.

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 finding the facts and in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that it has jurisdiction of this matter and that all statutory stays have expired.   It also finds the following by a fair preponderance of the evidence:  Theplaintiff, whose maiden name was Ayesha Dewan, and the defendant were lawfully married on October 20, 1999 in Bangladesh, India.   The parties were married in both a religious and then a civil ceremony.   In April of 2000, after the birth of the child, the parties moved to the United States.   Both parties have resided continuously in the state of Connecticut for at least one year.   The marriage of the parties has broken down irretrievably with no possibility of reconciliation.   There is one minor child born to the parties:  Ayesha N. Nazmi, born December 19, 1999.   Neither party has received state or local financial assistance during the course of the marriage.

The defendant is 41 years of age.   He is in good physical health.   At the time of the marriage, the defendant told the plaintiff that he had a college degree.   At one point, early on, he was an IT recruiter.   He has attended six years of college but has earned no degree, has been unemployed for most of the marriage and has spent a few years day-trading from home, where he lost more than $200,000.00.   The defendant claimed that during the first few years of the marriage he was unable to work because he was “mentally depressed.”   During the pendency of this action, the defendant was prescribed antidepressants but has not taken them for months.   At one point, the plaintiff agreed that the defendant could return to school to finish his degree but he never followed through.

The defendant currently has a sporadic part-time job in the field of music with a “gig” every Thursday evening for which he is paid $150.00.   He has made minimal efforts to find full-time employment, testifying that he has been a “stay-at-home dad” to his school age daughter for years and that he “sacrificed his career” to care for her.   Although the defendant was not employed during most of the child's preschool years, the plaintiff's mother, the plaintiff's sister in law and a friend cared for the child to allow the plaintiff to work.

The defendant is a self-described “very curious person” who takes all kinds of classes such as music and anthropology.   He indicated that he has taken many computer science classes as well, “knows more about computers than she does,” and that he redrafted his wife's resume at least thirty times.   He built computers in high school, building a computer system in the late 1980s and that while he believes that technology is now obsolete, he claimed that he could still build a computer from scratch.   He also testified that he paid for legal representation during his criminal proceedings by servicing the attorney's computer system.

In addition to having advanced computer skills, the defendant claimed that he has worked in landscaping the family home and building the gardens.   He also established that he has carpentry skills, that he rebuilt the family home basement and built a pellet stove.   He has experience in fundraising, can organize cultural events and is skilled in graphic design.   He also has traveled to music jazz festivals to “promote his music.”

The plaintiff is 41 years of age.   She is in good health.   She has been employed as a software engineer for the past eight to nine years.   She has effectively been the sole financial supporter of this family and this child for most of the marriage, including the parties' period of separation.   The defendant has provided no financial support to the wife or the child during the pendency of this action.

Substance abuse issues

Alcohol abuse has been a major challenge for this defendant.   In 2005, he was arrested for a DUI. He continued to drink and drive after this incident.   He would drink with the child in the car, asking the child to pass the drink to him.   On May 2, 2010, he was again arrested for DUI. A third DUI arrest took place during the course of trial.   That charge is currently pending.   Many of the domestic violence incidents that occurred in the case were alcohol related as well.   The defendant maintained through the trial that he had no substance or alcohol abuse issues, that his culture does not permit alcohol use and that the plaintiff actually is the one with a drinking problem.

The defendant was ordered to obtain an alcohol evaluation during the pendency of this case.   He chose not to do so.

Domestic Violence and Criminal Court Issues

The plaintiff was able to credibly cite numerous instances of abuse by the defendant against her and the child since the time they arrived in the United States.   At some point in 2000, the defendant physically attacked the plaintiff and thereafter, abuse became part of her everyday life when the defendant would hurt her one day and be sorry the next.   For years, the plaintiff did not call the police, hoping that the defendant would change.   The following are some credible examples of domestic violence incidents described by the plaintiff:

The defendant physically assaulted the plaintiff and warned her not to tell anyone so she told her family that she was injured hiking.

During one incident, the defendant caused the plaintiff's face to become bruised and swollen.   She could not go to work and her family brought both her and the baby to their home.

The parties were in line at a restaurant when the defendant became “embarrassed” by the wait.   To “teach her [the plaintiff] a lesson,” the defendant left with the car keys and the plaintiff was forced to walk 2 miles home on a main road.

The defendant told the plaintiff that she could not go to work.   She called a taxi, went to work anyway and the defendant brought the young child to the plaintiff's place of employment and left her there to again “teach her a lesson.”

Some time in 2006, the plaintiff asked the defendant to turn the music down as it was late and she and the child were trying to sleep.   In response, the defendant pulled the plaintiff off the bed, pulled her hair, slapped her face and accused her of insulting him.

Some time in November 2008, after he had been drinking, the defendant returned home at 3:00 A.M. and the plaintiff went to take a shower.   When she came out, the defendant threw her out of the house naked and wet, when it was freezing outside.   After several minutes, she came back in and the defendant had gone to bed.

In 2009, the defendant's harassment and abuse toward the plaintiff escalated.   He would break things, throw things, smash the television while the child was watching it, throw food outside and force the plaintiff to clean it up, stating “that's your punishment.”He called her regularly at work, would take her keys so that she could not get to work, which jeopardized her employment.   He yelled a lot in front of the child.   The defendant threatened to kill the plaintiff and warned that the child would end up in a foster home.   When the plaintiff was a half an hour late bringing the child home from a friend's house, the defendant locked both the plaintiff and the child out of the house for a significant period of time.

On several occasions, the defendant forced the plaintiff out of the car and she had to walk home.   On another occasion, the child left the house without breakfast.   The defendant threw a hot water bottle at the plaintiff who then ran from the house.   He then followed her as she ran to the car, picked up two rocks and threatened to throw them at her if she didn't stop.   When she went to work, she was treated by a physician who indicated that he would have to report the incident.

In May of 2009, after getting angry, the defendant got angry and bruised the child's arms, told her that she could not tell anyone and made her wear long sleeves to school.   The hospital social services reported this incident to DCF. The defendant threatened the plaintiff that he would call the police on her.   The security people at the hospital actually notified police.   DCF substantiated abuse and neglect by the defendant.   This caused the defendant to become increasingly angry and upset.   He believed that DCF was taking the plaintiff's side.

In October 2009, the defendant was arrested after returning to the family home while there was a restraining order in place and threatening the plaintiff.   The outcome of that conduct was that the defendant was convicted of Threatening in the 2nd degree, Criminal Trespass in the 1st Degree and Violation of Condition of Release.   For these convictions he received a sentence on March 30, 2010 of 1 year incarceration, execution suspended and 3 years Probation.

Proceedings and additional findings

During the pendente lite period of the dissolution action, sole custody, support of the minor child, and exclusive use and possession of the marital home was sought by the plaintiff.   On February 3, 2010, this court (Taylor, J.) accepted an agreement of the parties and ordered sole custody to the plaintiff, exclusive use and possession of the marital home to the plaintiff and job search efforts by the defendant so that he could secure a job in the event that he was released from electronic monitoring.   These orders were based on the series of alleged events that had occurred up to that point, including but not limited to the granting of a restraining order by this court in July 2009 against the defendant and the defendant's arrest for violating the restraining order in October 2009, which caused the criminal court to issue a protective order against the defendant.   Pursuant to that order, the defendant was ordered to vacate the marital home and to have no contact and no violence toward the plaintiff and child.

On that date, a Guardian ad litem was appointed with an order that the parties share the responsibility of her fees equally.   Her $2,500.00 retainer was to be paid from the parties' jointly filed tax return which the defendant then refused to cooperate with filing.   On May 25, 2010, the defendant was again ordered by the court (Caruso, J.) to file a joint tax return with the plaintiff, to pay the GAL's retainer and tax preparation fees off the top of the refund and to divide the proceeds equally.   By July 13, 2010, the tax issue continued to be problematic.   The court again ordered cooperation with the tax filing, threatened the defendant with incarceration if there was noncompliance, and ordered $5,000 to the GAL for fees.   Up to that point, the defendant had been represented by an attorney who was then permitted to withdraw his appearance from the case on that date.

On October 4, 2010, the restraining order filed and granted in Tolland was transferred to Hartford.

Best Interests of the Child

A guardian ad litem was appointed to represent the interests of the child.   As part of her duties, she interviewed the parties, met with the child and made many contacts with collateral providers, including the defendant's therapist.   She reviewed numerous records and testified at the restraining order hearing in Tolland.   She testified that this child is a good student, a girl scout, very gifted musically and in many respects, a normal pre-teen.   She found the child to be charming but greatly impacted by the events in this case and the conflict between the parents.   She also found the child to be greatly improved since she has been taken out of the conflict with the no contact order.   She also noted that the child loves and misses her father, wants to have a relationship with him and wishes that he would do what needs to be done.   There has been no contact between father and daughter since June of 2009.

It was no surprise for this court to learn that the child has been negatively impacted by the actions of the defendant.   Of concern, the child wrote a note in school about killing herself which school officials brought to the plaintiff's attention.   She has also become parentified, worried about her mother's safety.   During one altercation between the parties, the defendant had been drinking, entered the bedroom, woke the plaintiff and the child, told the plaintiff to leave, broke the plaintiff's cell phone when she tried to record what was going on, and the child advised her mother to leave and that she (the child) could handle it.

This court finds that the defendant is in complete denial of any and all allegations regarding substance abuse and domestic violence.   The defendant maintains that the plaintiff is a liar and has big cultural issues.   He believes that he has been betrayed and taken advantage of.   He believes that it is the plaintiff who has torn the family apart and he demanded that his young daughter be brought in to testify about this.   He maintains that the child is more attached to him than to the plaintiff and that he has “supported her [the plaintiff] for ten years.”

The defendant simply does not understand the negative impact that his actions have had on his daughter.   He demonstrated no concern over the fact that the child has written a statement in school threatening to kill herself and believed that it was caused by another child bullying her.   He believes that the child is “mature, loving and perfect” and would never lie.   He believes that he is her best friend.   In sum, the defendant had an answer for everything and takes no responsibility for the damage done to his daughter.

While it is true that the defendant did attend some mandated counseling, it does not appear that he was candid with either the court, the guardian ad litem or his service providers during assessments.   It also appears that any counseling the defendant has engaged in to this point has not been beneficial to him in addressing the issues that he needs to address.   This court has serious concerns about the defendant's mental health status as evidenced by his overall conduct as well as his conduct during the trial.   At one point, the defendant threatened to kill himself and indicated to the court that he should just put a gun to his head.

Child Support

Although the defendant is highly educated, he is currently unemployed, has a criminal record and has mental health issues.   Therefore, this court finds that, pursuant to Child Support Guidelines, the award of child support shall be in the amount of $75.00.

Postmajority Educational Support

This court finds, as a matter of fact, that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact.   Therefore, either parent may file a motion or petition for educational support to be considered by the court at a subsequent date, pursuant to Conn. Gen.Stat. 46b–56c.

Property Issues

The defendant maintains that the entire house is filled with his property from his family and that he needs the house because it has a recording studio and a trading room.   With respect to the family home, the defendant quitclaimed the family home to the plaintiff, several years prior to the filing of the dissolution action.   In any event, the plaintiff presented credible testimony that the family home has no equity.   Even though the defendant had not complied with the standing orders of the court in preparation for trial, at the end of the trial, this court gave him two weeks to procure an appraisal of the marital home.   Four weeks later, he had not done so.

The only other marital asset appears to be the plaintiff's 403b account which has minimal value.   While the defendant alleged that the plaintiff had taken some gold or silver that belonged to him and his family, there was little evidence to support this claim and there was no evidence with respect to value.

ORDERS

The court orders the following:

1. Dissolution. The marriage is dissolved on the ground of irretrievable breakdown.

2. Alimony. Upon consideration of all of the statutory factors, there shall be no alimony awarded to either party.

3. Custody and parenting time.   Sole custody of the minor child is awarded to the plaintiff.   Because there is currently a restraining order in place and because it is not currently in the best interests of the child to visit with the defendant, there shall be no order of parenting time with the defendant.   Should the defendant wish to have parenting time with his child at a future date, he is free to file a request to modify this court's decision, once he has met the following expectations:

alcohol and substance abuse treatment to address alcohol issues

successfully complete the Explorer Program which is a current condition of defendant's probation

mental health evaluation and recommended treatment

completion of the required parenting education classes

3. Child support.   The defendant shall pay to the plaintiff as child support the sum of $75.00 per week retroactive to the date of this court's last child support order.   Any arrearage accrued shall be paid at a rate of $20 per week.

4. Educational expenses.   The court shall retain jurisdiction over this issue for purposes of entertaining an order regarding payment of higher education expenses for the minor child pursuant to the provisions of General Statutes § 46b–56c.

5. Medical. The plaintiff shall continue to maintain health insurance for the child's benefit.   The plaintiff and defendant shall each be responsible for 75% and 25% respectively of all unreimbursed medical, dental, orthodontic and therapeutic expenses for the child so long as she is eligible to be covered by plaintiff's plan, as provided by the guidelines.   The provisions of General Statutes § 46b–84(e) shall apply.   The plaintiff shall make available to the defendant COBRA benefits, but the defendant shall be responsible for paying for the costs if he utilizes those benefits.   Should insurance not be available to the plaintiff or not at reasonable cost to her, the defendant is ordered to provide health insurance for the child's benefit.   If unavailable to both parents, then they shall pursue the HUSKY plan or its equivalent.

7. Attorneys Fees. Each party shall be responsible for their own attorneys fees, costs and expenses of litigation.

8. Property.

Marital home.   The marital home is awarded to the plaintiff.   There shall be no offset due the defendant as the only evidence of the property value establishes that this property has no equity.

Vehicles:  They parties shall each retain their own vehicles.

Retirement accounts:  The plaintiff shall retain her 403b plan free and clear of any claims of the defendant.   Likewise, the plaintiff is awarded the bank accounts and life insurance listed on her financial affidavit free and clear of any claims of the defendant.

Furnishings and Music equipment.   The defendant is awarded and of his family heirlooms still in the plaintiff's possession or in the marital home including furniture owned originally by his family and coins, gold, etc.   He is also awarded the musical equipment in the marital home.   The defendant shall arrange with his family to pick up any and all of that property within 30 days or the plaintiff may dispose of the property as she sees fit.

9. Funds in Escrow.   The money currently held in escrow if any is awarded to the plaintiff.

10. Mortgages, Loans and Credit Card Liabilities.   The plaintiff shall be responsible for the mortgages on the real estate and for all other loans and credit card debts listed on her financial affidavit, holding the defendant harmless with respect to those liabilities.   Likewise, the defendant shall be responsible for the loans and credit card debts listed on his financial affidavit, holding the plaintiff harmless with respect to those liabilities.

12. Life Insurance.   For so long as the defendant has a child support obligation, the defendant shall maintain a policy of term life insurance in the total amount of $100,000 for the benefit of the minor child, provided such insurance is available and reasonably affordable.

13. Auto insurance.   The parties shall each be responsible for maintaining their own automobile insurance.

BY THE COURT,

Prestley, J.

Prestley, Linda Pearce, J.