Andrea N. Lincoln–Volmar v. Emmanuel A. Volmar (2011)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' four-year and ten-month marriage.   The action was commenced by an undated complaint which was returnable to the court on May 11, 2010.

The parties appeared at trial on April 7, 2011.   The plaintiff and defendant were each represented by counsel.   The court heard testimony from each of the parties, and received into evidence thirteen exhibits.   The court considered all of the evidence presented, the provisions of General Statutes §§ 46b–56, 46b–56a, 46b–56c, 46b–81, 46b–82, 46b–84, and 46b–215a, and the provisions of the Child Support and Arrearage Guidelines.

The court, at the conclusion of the trial, left evidence open solely for the assistant attorney general to submit to the court the proposed orders of the State of Connecticut.   The proposed orders were received on April 12, 2011 and the taking of evidence ceased.

As financial matters were in dispute in the contested dissolution trial, the court ordered the unsealing of the financial affidavits pursuant to Practice Book § 25–59A.

FINDINGS OF FACT

The parties were married in Wethersfield, Connecticut on June 3, 2006.   One child was born to the parties before the date of the marriage:  Emmandre was born on December 20, 2003.   A second child was born to the parties after the date of the marriage:  Elijah was born October 25, 2007.   The children reside with the plaintiff in the marital home.   The plaintiff and the defendant have lived in the State of Connecticut for more than one year prior to the filing of the complaint.   The parties have been living separate and apart since April 2010.

The parties started dating in February 2003.   The plaintiff was living in New York and working as a nanny at that time.   The plaintiff became pregnant within one month of the parties' dating.   She became too ill to work and could not pay her rent in New York. By the end of 2003, the plaintiff moved in with the defendant.   He testified that he had not planned on living with the plaintiff so soon after meeting, but due to her lack of income, and presumably due to her being pregnant with his child, relented to her moving in with him in Connecticut.

There was credible evidence of domestic violence occurring in the home.   The plaintiff claims to have suffered constant abuse from the defendant.   There was an arrest of the defendant due to a domestic violence incident in November or December 2005—which predates the marriage.   The defendant was again arrested in April 1, 2010.   In connection with the April 2010 incident, the plaintiff claims the defendant, who attempted to control her, abused her verbally and physically assaulted her because she wanted to go out with her girlfriends from work.   The defendant, as is often the case, has a different take on the 2005 and 2010 incidents.   As to the 2005 incident, he claims she was the aggressor and he was the one who called the police.   As for the April 2010 incident, he disputes her account.   He voluntarily left the house before the police were called.

The court finds the marriage to have been a short and turbulent one.

During the marriage, the plaintiff worked as a certified nursing assistant (CNA).   She testified that she generally worked approximately twenty-four hours a week earning $13.75 an hour.   The defendant testified that she at one point during the marriage worked forty hours a week.   She testified that she was unable to work full time while she was married because the defendant would insist on her being home by 1:15 p.m. so he could go to work.   She also testified that she is currently unable to work because of her need for childcare;  she testified that her hours at her last employment started at 7:00 a.m., but she could not find child care that took children earlier than 8:00 a.m. She lost her last job on November 26, 2010.   The defendant was unaware that she was not working until the week of the trial—he dropped off the children at child care on the Tuesday before the trial, believing the plaintiff was at work at the time.

The plaintiff was born in Jamaica.   In addition to the two children from the relationship with the defendant, the plaintiff has two children living in Jamaica who are not the children of the defendant.   Those children are sixteen and twenty-one years old.   The defendant claims the money the plaintiff earned from her employment did not go towards household expenses, but was sent to Jamaica.   She denies sending any money to her children in Jamaica while she was with the defendant.

The plaintiff did not appear to the court to be in ill health.   She testified however that she has been suffering from stress due to being in an abusive marriage.   She further testified that she has no physical injuries or disabilities.

She testified that she was in school to obtain a medical assistant certificate about three weeks before the trial, but had to stop for medical reasons.   The exact reasons were not specified.   The children continue to be in childcare.

The plaintiff was receiving state assistance from and after April 2010 until the defendant began to pay child support and alimony in July 2010.

The defendant has been employed for approximately nine years at Pepperidge Farm. He currently earns $910 a week.   He generally works forty-seven and one-half hours a week—working eight-hour days, six days a week.

In 2003, he began to contribute to a 401(k) plan offered through his employer.   In 2007 he took a loan against his 401(k) in the amount of approximately $6,700.   The defendant filed an individual tax return in 2008 (claiming head of household status) which reflects, in line 16b thereof, taxable income in the amount of $15,168 from pensions/annuities.  (Exhibit 9.) (Exhibit 6, an account summary from his employer for the period of October 30, 2008 to November 30, 2010 reflects only a loan made on 5/15/07 in the amount of $6,000.)   The loan(s) or distribution(s) were ostensibly taken to try to save a home owned by the defendant, in which the family resided, which was in foreclosure.   The house was foreclosed upon.   The defendant filed for bankruptcy.   He ended up using the money to buy two cars, one of which was later sold.   He gave the other car to the plaintiff to drive.   After taking the loan against the 401(k) he was unable to contribute thereto for a year.   He began to make payments again, but he stopped contributing to the program in 2010 when he began to pay child support and alimony pendente lite.   He has repaid more than $3,000 of the loan against the 401(k).  He contributes to a weekly savings account and to the credit union.   As of September 30, 2010, the 401(k) has a balance of approximately $13,150.   The defendant's financial affidavit lists the value as $11,397.

The complaint alleges the marriage has broken down irretrievably.   The complaint further alleged the ground of physical and mental abuse.

In the complaint, the plaintiff sought sole custody of the minor children.   On July 14, 2010, the court, J. Fischer, J. entered a pendente lite order providing for joint legal custody of the children with primary residence with the plaintiff mother.   The defendant father was provided with reasonable rights of visitation.   The parties have agreed that such orders are to be incorporated into the judgment of dissolution.

Neither party owns real property at this time.   The defendant has owned, on his own and with a family member, a couple of homes prior to the marriage.   In May 2004 the defendant bought a home in Wethersfield.   The home was foreclosed upon and the family moved to an apartment in East Hartford.   The defendant and the family continued to reside in that apartment until the defendant left the same after being arrested for the April 2010 domestic violence incident.   The plaintiff and the children continued to live in the apartment until January 23, 2011 at which time they were evicted.   The plaintiff claims the defendant was the only tenant named on the lease.   She testified that the landlord obtained a judgment in the amount of $5,500 for unpaid rent (and presumably use and occupancy) against she and the defendant;  the judgment amount is reflected on only the plaintiff's financial statement.

The plaintiff lists additional debt on her financial affidavit.   The debt to St. Francis was incurred at the time of Elijah's birth.   The Northeast Utility is claimed to be a joint debt which she has paid down from $2,100 to the balance of $800 shown on her financial affidavit.   The dental bills are the plaintiff's.   The liability to the IRS shown on her financial affidavit has, based on defendant's Exhibit B and his credible testimony, been satisfied.

The plaintiff also claims that The Learning Center, the children's day care, is owed $1,425 although her financial affidavit lists the debt at $1,337.   Pursuant to the pendente lite orders of Judge Fisher, the defendant was responsible to pay one-half of the child care expenses.   The defendant disputes the amount due to the childcare center claiming he has made payments to the provider.   The plaintiff failed to introduce to support the claimed arrearage.

The defendant lists debt on his financial affidavit, but he did not claim that any of the debt so listed is a joint liability of the parties.   He failed to list the joint debt referenced above.

Neither the defendant's nor the plaintiff's financial affidavit lists any bank accounts.

The plaintiff claims the defendant has money secreted.   There was no evidence to substantiate that claim.

The plaintiff's financial affidavit lists a 2001 Chrysler Town and Country having a value of $2,000.   The defendant's financial affidavit lists a 2006 Chrysler Pacifico having negative equity of $6,000 and a 1993 Honda having a value of $2,000.

The plaintiff has household furnishings and personal belongings of the having an aggregate value of approximately $6,000.

ADDITIONAL FINDINGS AND ORDERS

The court makes additional findings and enters the following orders:

A. Jurisdiction and Dissolution

The court has jurisdiction in this matter which has been pending for more than ninety days.   The plaintiff and defendant have lived in the State of Connecticut for more than one year prior to the institution of the action.

The plaintiff alleged in paragraph 6 of the complaint two reasons for the divorce being sought—(a) that the marriage has broken down irretrievably and (b) physical and mental abuse.

The court dismisses the ground of physical and mental abuse inasmuch as it is not a ground for dissolution pursuant to the provisions of General Statutes § 46b–40(c).

The evidence however was clear the marriage has broken down irretrievably.   The court finds the allegations of the complaint, other than the alleged ground of physical and mental abuse, have been proven and true, including the allegation that the marriage has broken down irretrievably.

The State of Connecticut has contributed to the support of the plaintiff and the children.   The assistant attorney general submitted proposed orders on April 12, 2011 (No. 121), a copy of which is attached hereto and made a part hereof as Exhibit A. The court accepts the proposed orders and orders the same as final orders which are to be incorporated in and made a part of the judgment of dissolution.

A decree of dissolution may enter.

B. Custody and Access

The court has considered the evidence presented and the factors set forth in General Statutes § 46b–56(c) and hereby orders joint legal custody of the children with primary residence with the plaintiff mother.   The defendant father is granted reasonable rights of visitation as agreed upon by the parties.

The court finds the foregoing orders to be in the best interest of the children.

C. Earning Capacity

“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).”

The court finds the plaintiff to be capable of earning, at a minimum, $350 a week—that amount is consistent with her historical income which was earned on a part-time basis.

D. Child Support

Based upon the combined net weekly income of the parties (as shown on the defendant's financial statement and the earning capacity of the plaintiff as found above), the presumptive weekly minimum basic child support payable by the defendant is $215.   After hearing the testimony of the parties and reviewing the exhibits, the financial affidavits, the earnings of the respective parties, and the deviation criteria set forth in Section 46b–215a–3(b)(6) of the Child Support and Arrearage Guidelines Regulations, the court orders the defendant to pay the sum of $215 per week for child support.   The court orders the child support payment shall be made by immediate wage withholding.

E. Medical insurance

The orders of the court with respect to medical insurance are as set forth on Exhibit A attached hereto.

The defendant shall be responsible for 50% of the amount of any unreimbursed medical, dental, optical, pharmaceutical, psychological, psychiatric, and orthodontic expenses, including any deductibles, for the minor children;  however, if the minor children shall not have graduated from high school at the time of his eighteenth birthday, then the provisions of General Statutes § 46b–84(b) shall apply.   In addition, the provisions of General Statutes § 46b–84(e) shall apply regarding the processing of medical insurance claims for the minor children.

F. Work-related childcare expenses and extra-curricular activities for the children

The plaintiff and defendant shall equally share the cost of the children's work-related child care expenses.   The parties shall also equally share the expenses for the children's extra-curricular activities, provided, however (i) for any extra curricular activity which costs in excess of $100 per child per activity, the parties must agree on the child participating in the activity and (ii) the maximum annual cost to each party per child shall not exceed $750 unless the parties otherwise agree.   If one of the parties seeks to enroll a child (or both children) in an activity the cost of which exceeds the amount of $100 per child and the parties do not agree, the party seeking to enroll the child in the activity may elect to do so, provided the expense to the party not agreeing to such activity shall not exceed $50 (unless such party agrees to pay more than $50) and the party supporting the activity shall contribute $50 to the expense together with the cost thereof that exceeds $100.   For example, if the defendant wants to enroll Elijah in karate and the cost is $150, the plaintiff may object because the cost exceeds $100.   The defendant may enroll the child in karate.   The plaintiff shall contribute $50 to the cost and the defendant shall contribute $100—which amount is the sum of the $50 contribution and the $50 extra to meet the total cost of $150.

G. Post-majority support

Pursuant to the provisions of General Statutes § 46b–56c, the court reserves jurisdiction to determine educational support and each party reserves her/his right to file a future motion or petition for an educational support order.

H. Alimony

Taking into consideration the division of marital assets pursuant to General Statutes § 46b–81c and based upon the statutory factors, including the age, education, earnings, vocational skills and work experience of the defendant and of the plaintiff, a time-limited award of alimony is appropriate.   See, Ippolito v. Ippolito, 28 Conn.App. 745, cert. denied, 224 Conn. 905 (1992);  in making the award, the court has taken into consideration the defendant retaining his 401(k) plan.   The defendant shall pay to the plaintiff $120 per week as and for periodic alimony, for the period May 1, 2011 to April 30, 2012, and $80 a week as periodic alimony for the period May 1, 2012 to April 30, 2014, provided, however, the alimony shall terminate on the death of either party, the remarriage of the plaintiff, or cohabitation by the plaintiff.   The court orders that alimony is to be paid by immediate wage withholding.   It is the intention of the court that this order shall be non-modifiable by either party as to amount or term, except in the event of the death of either party or the remarriage or cohabitation of the plaintiff.   Within one year from the date of dissolution, the plaintiff should be able to obtain employment.   The alimony shall be includable as income to the plaintiff and deductible by the defendant.

No alimony is awarded to the defendant.

I. Division of property

1. Automobiles. Each party shall retain the vehicles shown on their respective financial affidavit free and clear of any claim by the other party.   The defendant shall indemnify and hold the plaintiff harmless from the loan secured by the 2006 Chrysler.

Within thirty days of the date hereof, each party shall execute any documents necessary to effectuate the transfers of any such vehicle.

2. Savings accounts and bank accounts.   The parties shall retain any bank account they may hold free and clear of any claim by the other party.

3. Debts. The defendant shall be responsible to pay all of the debts shown on his financial affidavit and the repayment of the 401(k) loan(s).  The plaintiff shall be responsible to pay the debt to Vottal Dental and Francis Cleary, DDS shown on her financial affidavit.   The parties shall each be responsible to pay one-half of the debt to St. Francis Hospital, Paragon Management and Northeast Utilities.   If and to the extent there remains any liability to the U.S. Treasury for any of the $1,642 shown on the plaintiff's financial statement, the defendant shall be responsible for the same.   Each party shall indemnify and hold the other harmless with respect to any debt, or portion thereof, ordered to be paid by such party.

As for the debt to the Learning Center, the plaintiff failed to prove the existence of the debt.   In the event the plaintiff obtains proof from such center of the existence of the debt, as well as an accounting of all payments made by the plaintiff and the defendant against the obligation payable to such center and the plaintiff thereby establishes the defendant owes any portion of such debt (due to the court order requiring him to pay 50% of the child care expenses pendente lite), the plaintiff shall provide such documentation to the defendant.   If the parties cannot agree on the amount of the debt payable by each of them, either party may file a motion with the court.   The court shall retain jurisdiction over the matter.

4. Life insurance.   So long as the same is available at a reasonable cost, the defendant shall maintain life insurance in an amount of not less than $75,000 naming the minor children as an irrevocable beneficiaries thereon for so long as each such child is a full-time student or until he reaches twenty-three years of age whichever is first to occur and name the plaintiff as the trustee of the insurance benefit for the children subject to probate court supervision.

The defendant shall provide proof of maintenance of said policies to the plaintiff annually.   The defendant shall also notify the insurance companies to send to the plaintiff duplicate notices of any potential lapse or cancellation for non-payment of premium.

5. Retirement assets.   The defendant shall retain his 401(k).

6. Personal property.   Each party shall be entitled to her/his personal property free and clear of any claim by the other party.

J. Tax Exemptions

The defendant and the plaintiff shall be entitled to claim one of the minor children as an exemption on his/her federal and state income tax returns.   At such time as there is only one child eligible to be claimed as a dependent, the plaintiff shall take the exemption in even-numbered years and the defendant shall do so in odd-numbered years.

K. Tax Indemnification

Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that parties' income or deductions.

L. Tax and employment Information

Each party shall notify the other within fifteen days of the date such party obtains or changes employment.   The notification shall include the name and address of the employer and the anticipated salary or wages to be earned by such party.

For so long as the defendant has an obligation to pay child support to the plaintiff, the parties will annually exchange their W–2s, 1099s, K–1 and similar forms by February 28 each year and will provide each other with their federal tax returns within fifteen days of filing.

M. Fees

Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.

N. Effectuation of Orders

Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within ten days of presentment.

Unless otherwise specifically set forth herein, these orders are effective immediately.

SO ORDERED.

BY THE COURT,

Olear, J.

EXHIBIT A

STATE OF CONNECTICUT PROPOSED ORDERS

Pursuant to Conn. Gen.Stat. § 46b–55, the State of Connecticut is a party to the above captioned dissolution action as the minor children receive aid from the State of Connecticut under the medical assistance program while under the care of the Plaintiff.   The State of Connecticut has a claim under Conn. Gen.Stat. § 17b–93 for repayment of aid given to the Plaintiff against each party.   The State of Connecticut respectfully requests as orders in the dissolution as follows.

1. That each party is to pay $1.00 per year alimony modifiable only by the State of Connecticut.

2. That both Plaintiff and Defendant each provide health care coverage for the benefit of their minor children as available at reasonable cost defined as no more than 7.5% net income and that each divide unreimbursed medical/dental costs of the minor child equally (50/50).

3. The State of Connecticut reserves all its rights, statutory and otherwise, against the Plaintiff and the Defendant.

Olear, Leslie I., J.