Lori A. Messina v. Darren M. Messina (2011)

MEMORANDUM OF DECISION

This dissolution of marriage action has been a contentious matter and a difficult period for the parties and their children.   It was complicated by a number of criminal actions with resulting protective orders as well as civil restraining orders.   It was additionally difficult because the defendant, who represented himself at trial, was required to examine and cross-examine his own wife and, at one point, his mother.¹

The family history is not disputed for the most part.   The parties were high school sweethearts.   They married on February 7, 1992 after dating for almost six years.   Initially the defendant was the wage earner in the family and the plaintiff was the homemaker.   He lost his job as the manager of a jewelry store when the business was closed shortly after they married and had difficulty finding employment.   He was employed by the United States Postal Service for a brief period of time and then at Davidson Meyer Metals, Inc. During his employment at Davidson Meyer, the defendant was seriously injured in a work-related accident on June 12, 1997.   He was retrained by the Workers' Compensation program in business administration and accounting, earning associates degrees in those fields in 2001, but was never again successful in regaining long-term employment.   His employment record since 1997 has been very spotty.   His most recent employment was a short-term job with Criscitelli Enterprises in 2008–2009.   During hearings prior to the trial, the defendant testified that he was let go and forced to sign some sort of restrictive covenant with that company that has made finding another job extremely difficult.²  At the time of trial the defendant remained unemployed.   His unemployment benefits were exhausted and he supported himself on cash assistance payments from the State of Connecticut and food stamps.

The couple had their first child, Kristina, in March of 1993.   Their second child, Bailey, was born about three years later.   According to the plaintiff, it was a happy marriage despite the defendant's employment issues.   She claims that although there had been some verbal and physical abuse all through the marriage, things became worse sometime in 2005–2006.

The plaintiff alleges that the defendant was extremely controlling.   According to her, he completely dictated all financial decisions and she was not allowed to even open the mail without his permission.   Although she became the wage earner in the family starting in 1999, her husband demanded and had complete and total control over all of the family finances.   She also alleges that this was accompanied by extreme emotional abuse including her husband yelling at her, calling her demeaning names and generally attacking her self esteem.   The wife testified that within this environment, she felt very isolated and believed that the problems stemmed from her deficiencies as a wife;  it was her job to make things better and to please her husband.   She thought this was just the way it was supposed to be.

In addition to the deterioration of the marriage relationship, matters were exacerbated—or perhaps caused by—the defendant's realization that he was a homosexual and not a heterosexual individual.   That discovery was disclosed by the defendant to the plaintiff toward the end of 2006.   After that revelation he began to spend more and more time away from the home.   The plaintiff testified that although the defendant vacated the marital home in October 2009 due to protective order restrictions, he actually had been living in and out of the home since February 2007 or even earlier.

The defendant's testimony does not completely contradict the plaintiff's rendition of the family history.   He simply characterizes it differently.   From the defendant's perspective there was no abuse or controlling behavior.   He was more outspoken in his opinions and this wife was deferential.   She had access to the family money and carried her own ATM card;  he did not control things.   Money was always an issue due to his lack of employment and his injury.   Although there were certainly arguments about finances, his position was that he did not control things.   He also pointed out that even after February 2007 when he lived at home less often, he still participated in family life.   He took the children to and from school and to doctor's appointments, paid the bills, and attended family functions.

The family dynamics changed drastically when the plaintiff filed for her dissolution of marriage action.   The defendant's behavior, according the plaintiff, became more violent and erratic both as to children as well as to her.   The defendant adamantly denies the domestic violence allegations and is currently preparing to defend himself in the criminal court against all pending charges.   He repeatedly asserted that the allegations of domestic violence and intimidation were fabricated by the plaintiff and her counsel to achieve a tactical advantage at trial and to remove him from the family home.   For the purposes of the dissolution of marriage matter in which there is a much different burden of proof than in a criminal matter, the plaintiff's testimony is more credible in this regard.   The defendant's personality is one that is at best assertive and at worst explosive.   The court's observations of his behavior in the court room throughout both the pretrial and trial proceedings lend considerable understanding to the meaning of the plaintiff's testimony about their relationship and the relationship between the defendant and his children.   Although the defendant was, in many ways, extremely well prepared for the trial and persistent in his examination, it was clear to the court that his personality traits could easily be intimidating and frightening to many people.   Additionally, the report of the guardian ad litem for the children supported the charges as they pertained to the events with Kristina.   This was based on her interviews not only of her ward, but of two independent witnesses to the altercation between father and daughter.

A great deal of the testimony at the trial concerned itself with the finances of this divided family.   Although the plaintiff makes a good salary working at The Hartford, her income does not cover the basic expenses she has for providing for herself, her son Bailey and her daughter Kristina.³  On the other hand, the defendant has not been employed successfully for many years and not at all for the last two years.   The testimony and evidence established that he has a significant partial disability to his right upper extremity, including his master hand, and has other medical issues that could interfere with, or even prevent, his ability to work.⁴  It was his clear testimony, however, that he could work and was hoping to gain employment.   Such an attitude is certainly to the defendant's credit, but his actions belie his words.

The defendant is an extremely bright and persistent individual.   After seeing the amount of effort and time he put into his trial preparation, it is difficult for the court to believe that he could not have been more successful either in obtaining employment or in obtaining Social Security Disability Benefits.⁵  Regarding the latter, it was his testimony that he has applied for Social Security Benefits but was denied.   He also testified that he did not pursue the matter further.   He did not consult an attorney experienced in handling such cases and he did not appeal the initial denial on his own.   With very little in the way of inquiry, a person with this individual's intelligence and persistence would have known that an initial denial is extremely common and that an appeal of the decision very often leads to a more positive outcome.   Regarding employment, the defendant was directed by the court to do job searches in a very specific and documented manner at the end of a pretrial hearing on February 9, 2011.   The defendant did not perform the job searches as ordered, but rather produced a very sketchy list of efforts made.   He testified that he did not fully understand the court's order despite that order being reduced to writing (docket item # 178) and mailed to him by the plaintiff's counsel.

According to the defendant's testimony, he is currently living with an individual with whom he is involved romantically.   He claims that although he has an obligation to pay rent and utilities to his landlord/boyfriend, that obligation is currently being deferred with a debt accruing.   He offered the court no details about the arrangement, he presented no notes or leases;  he was evasive about the most basic information, including the name of the individual and his employment.   The defendant's response throughout the proceedings was that he did not want to involve third parties in the dissolution and he refused to accept that such people were most definitely involved despite his wishes to the contrary.

The defendant was most successful in attacking the plaintiff's financial affidavit.   He clearly demonstrated that she was incorrect in the statement of her income.   She had not converted her bimonthly amount into a weekly amount correctly.   Likewise, he was also successful in proving that some of her expenses were overstated.   What he did not understand, however, was that despite these successes at demonstrating the deficiencies in her financial affidavit, she lacked sufficient funds to meet even the more basic family expenses.   His boast to plaintiff's counsel during his direct examination by her that he has not contributed “a dime” to the family since he has been out of the house was not very helpful to his position especially since the court had ordered child support based on a minimum wage salary on February 9, 2011.⁶  His rationale for this position is that the plaintiff was employed full-time and he was not.   Also, he alleged that she had stolen enough money from marital assets so it was not necessary for him to support her and the children.   The evidence supported the fact that the plaintiff did withdraw funds from her deferred income assets with The Hartford to pay for legal fees and other expenses permitted by the Automatic Orders.   It is also true that the defendant liquidated marital assets for similar reasons.

The plaintiff is seeking to dissolve the marriage and retain all or most of her assets.   She is seeking sole custody of the minor child Bailey and support in line with the guidelines.   The defendant is requesting alimony for a ten-year period in the amount of $575 per month for as long as there is a child support obligation then doubling to $1,150 per month when that obligation ends.   He is requesting that such alimony order be non-modifiable as to term.   He will also pay child support of approximately $45 weekly for Bailey.   The defendant is asking that the plaintiff pay his COBRA costs for the maximum period under the law, but he does not make any comment as to whether this would be considered additional alimony or not.   He is asking the court to divide the debt and the household personal property, but he is waiving any claim to the marital home.

Having carefully reviewed all of the testimony and evidence presented, the court makes the following findings:

A.  The court has jurisdiction to hear this matter;

B. All statutory stays have expired;

C. The allegations of the complaint have been proven;

D. There are two minor children issue of the marriage for the purposes of determining child support, to wit:  Kristina Ashley Messina, born March 9, 1993, who is still in high school;  and Bailey Alexander Messina, born February 26, 1996;

E.  The defendant has been and continues to be the recipient of state financial assistance;

F. The presumptive child support pursuant to the Child Support Guidelines is $52 weekly for two children and $40 weekly when there is only one minor child;

G. There is a child support arrearage based on the orders entered February 9, 2011.   Said arrearage is $856 through the week ending April 30, 2011, including no arrearage accruing for the weeks from April 1, 2011, due to the shoulder surgery that took place on April 8, 2011 and the defendant's recovery period therefrom; 7

H. The parents, had they remained an intact family, would have supported their children in post-secondary education endeavors;

I.  The defendant bears the greater fault in the breakdown of the marriage;

J. The defendant, despite his medical issues, remains employable for a full work week at least at the minimum wage level;

K. Both parties liquidated marital assets during the pendency of the action and such liquidations were permissible under the provisions of the automatic orders as set forth in the Connecticut Practice Book § 25–5 and were used for ordinary expenses and/or legal fees connected with this action;

L. The legal fees incurred by the guardian ad litem in connection with this matter in the amount of $22,810.50 are fair and reasonable based on the amount and type of work required by this case.   The plaintiff has paid a total of $5,000 against that obligation and the defendant has paid a total of $2,500.   The balance owed by the plaintiff based on an equal obligation is $6,405.25;  the defendant's remaining obligation is $8,905.25.

After a thorough review of the evidence presented and the factual findings of the court in light of the statutory criteria applied in dissolution cases involving children, the court HEREBY ORDERS:

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

2.  Joint legal custody of the minor child, Bailey Alexander Messina, born February 26, 1996, is awarded to the parties.   Primary residence of said child shall be with the plaintiff;

3.  No specific parental access schedule is ordered and the access between father and son is to be initiated by the minor child in consultation with his therapist;

4.  The defendant is to pay child support to the plaintiff in the amount of $52 weekly until such time as Kristina Ashley Messina, born March 9, 1993, graduates from high school, or March 9, 2012, whichever is the first to occur.   At such time, the child support shall automatically be reduced to $40 weekly;

5.  The defendant shall also pay $4 weekly against an arrearage of $856 which arrearage amount is as of the week ending April 30, 2011;

6.  The child support and arrearage orders shall be secured by a contingent wage withholding order;

7.  The defendant shall continue to vigorously seek employment and shall report any employment to the plaintiff within forty-eight hours of being hired;

8.  The plaintiff shall provide medical and dental insurance for the minor children as long as it is available to her at reasonable cost.   In the event that such insurance is not available to either parent, the minor child shall be enrolled in the Husky Program.   The provisions of Connecticut General Statute § 46b–84(e) shall apply in this matter;

9.  The defendant shall also pay 15% of all uncovered and/or unreimbursed medical expenses for the two minor children until the trigger dates as detailed in ¶ 4 above and then for the remaining minor child only.

a. The plaintiff shall provide the defendant with her request for reimbursement at least quarterly.   Such request must include sufficient documentation so that he can reasonably determine the cost of the service, the nature of the service, the amount of insurance coverage, if any, and the amount being sought from him.

b. The defendant must advise the plaintiff of any objections to a reimbursement claim within ten (10) days of the receipt of the request.

c. The defendant shall make the reimbursement within thirty (30) days if the amount being sought is $250 or less.   If the amount is above $250, he shall have sixty (60) days to make reimbursement.

d. Failure of either party to comply with the time limits as set forth in §§ ”a,” “b” and “c” above shall result in that party's forfeit of their rights under this provision.   Failure of the defendant to make payments within the time limits prescribed shall result in the accruing of interest on the unpaid amount at the statutory rate of 8% per annum;

10.  The court will retain jurisdiction as to post-secondary educational expenses for both children pursuant to Connecticut General Statute § 46b–56c;

11.  Alimony in the amount of $1 is granted to both parties modifiable only by the State of Connecticut.

12. The plaintiff shall retain free and clear of any claim by the defendant all the right, title and interest in the former marital home located at 17 Haynes Street, Enfield, CT;

13.  The plaintiff shall retain the 2005 Jeep Grand Cherokee Limited motor vehicle free and clear of any claim from the defendant.   She shall indemnify and hold harmless the defendant from any liability stemming from the ownership and/or operation of said vehicle.

14. The defendant shall retain the 2007 Volkswagen Passat 4–Motion motor vehicle, the 2003 Buell Blast motorcycle, the 1971 Starcraft boat and the Travel To Go Membership # 101477 free and clear of any claim from the plaintiff.   He shall indemnify and hold harmless the plaintiff from any liability stemming from the ownership and/or operation of said motor vehicles and/or boat;

15.  Each party is to execute and deliver any documents necessary to effectuate the orders as set forth regarding the real property, motor vehicles and boats within ten business days of receipt thereof as long as such execution is at no cost to the transferring party.   The court shall retain jurisdiction over such transfers until they are completed;

16.  The plaintiff shall transfer to the defendant by way of a Qualified Domestic Relations Order (QDRO) the current balance of her 401(k) plan with Fidelity which is a deferred income asset of hers through her employment at The Hartford.   Said transfer shall be made to the defendant but mailed to the guardian ad litem, Attorney Kerry A. Tarpey, at Devlin, Peters & Tarpey, LLC, 11 South Road, POB 400, Somers, CT 06071.   Upon notification by the guardian that the check has been received, the defendant shall endorse said check to the guardian within ten business days.   From that asset, the sum of $11,405.25 shall be paid to the guardian and said payment shall be payment in full of the guardian's fees for both parties.   Upon receipt of said funds the guardian may withdraw her appearance with the approval of the court.   Any cost for the preparation of the QDRO shall be paid by the plaintiff.   The balance of the asset shall be the defendant's free and clear of any claim by the plaintiff.   The court shall retain jurisdiction over the QDRO until the order is approved and executed by the plan administrator;

17.  The plaintiff shall retain, free and clear of any claims by the defendant, all other financial assets in her name and or possession, including bank accounts, investments and deferred income assets.   This order shall also include the tax refund received by the plaintiff as a result of her 2009 tax filings.   The defendant shall retain all of his financial assets in his name and or possession, including bank accounts, investments and deferred income assets;

18.  The defendant shall be allowed to retain free and clear of any claim by the plaintiff, any sort of payment that he might received as a result of his injury on June 12, 1997, whether in the form of a retroactive payment of disability benefits or a future settlement or judgment based on any type of workers' compensation claim;

19.  The defendant shall be entitled to any and all personal property items received by the parties from his family, as well as his clothing, personal records and papers.   Such items may include holiday decorations, jewelry, household goods and cooking utensils.   Additionally, he shall be entitled to any and all photographs that show him and either or both of the children.   He may have copies of other photographs and the expense for producing the copies shall be shared equally by the parties.   The defendant shall also be entitled to one well functioning television set from the marital home.   The choice of the television is to be made by the plaintiff.   The plaintiff shall pack such items and leave them for pick-up at a time to be agreed upon by the parties.   All other household goods and possessions shall be the sole property of the plaintiff.   The court shall retain jurisdiction over the transfer of the personal property items until completed or July 29, 2011, whichever is the first to occur;

20.  The plaintiff shall be entitled to claim both children for tax filing purposes.   In the event the defendant obtains employment in the future and earns a gross income of $20,000 or more, this provision may be modified to more evenly share the dependency exemptions;

21.  The plaintiff shall be solely liable for the following debts and obligations

Chase, $19,902

Discover, Card $16,584

Orchard Bank, $180

Attorney Eisenberg, $3,480

Medical bills, $5,691

and any other bills in her name or pertaining to the marital home.   She shall indemnify and hold harmless the defendant from these liabilities.

22. The defendant shall be solely responsible for all the liabilities that he has listed on his financial affidavit of April 19, 2011, understanding that some of them have already been satisfied either by other orders of the court or prior payment by one of the parties.   He shall indemnify and hold harmless the plaintiff from these liabilities.

23. Each party shall be solely liable for their legal fees in connection with this matter.

24. A copy of this Memorandum of Decision is being forwarded to the Attorney General's Office.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The defendant's mother was called as a witness for the plaintiff.   Her direct examination was brief.   Cross-examination by the self-represented defendant was extremely hostile on the part of both people and was terminated by the court.   As the defendant was unable to complete his examination of the witnesses, the court did not use any of their testimony in its consideration of the evidence..  FN1. The defendant's mother was called as a witness for the plaintiff.   Her direct examination was brief.   Cross-examination by the self-represented defendant was extremely hostile on the part of both people and was terminated by the court.   As the defendant was unable to complete his examination of the witnesses, the court did not use any of their testimony in its consideration of the evidence.

FN2. The alleged covenant document was not produced nor offered into evidence and the defendant testified that he has never attempted to negotiate any modification of the terms because his mother is employed at that company and there is a criminal protective order enjoining him from having contact of any kind with her..  FN2. The alleged covenant document was not produced nor offered into evidence and the defendant testified that he has never attempted to negotiate any modification of the terms because his mother is employed at that company and there is a criminal protective order enjoining him from having contact of any kind with her.

FN3. Kristina turned 18 earlier this year, but is still living at home and attending high school full-time.   Pursuant to statute, she is still a “minor” for support purposes and will remain so until she graduates high school at the end of the 2010–2011 academic year..  FN3. Kristina turned 18 earlier this year, but is still living at home and attending high school full-time.   Pursuant to statute, she is still a “minor” for support purposes and will remain so until she graduates high school at the end of the 2010–2011 academic year.

FN4. The defendant underwent shoulder surgery during a break in the trial and at the time of the final day was still on medical restriction preventing any employment..  FN4. The defendant underwent shoulder surgery during a break in the trial and at the time of the final day was still on medical restriction preventing any employment.

FN5. The defendant testified that his involvement with this case as well as his several criminal court cases occupy so much of his time and energy that he has not been able to effectively seek employment.   Additionally, he testified that the costs of traveling to all of his court appearances and paying for parking consumes much of his very limited financial resources..  FN5. The defendant testified that his involvement with this case as well as his several criminal court cases occupy so much of his time and energy that he has not been able to effectively seek employment.   Additionally, he testified that the costs of traveling to all of his court appearances and paying for parking consumes much of his very limited financial resources.

FN6. That order also included a suspension of payments with an accrual of an arrearage while the defendant performed the detailed job searches ordered by the court as indicated earlier in this decision..  FN6. That order also included a suspension of payments with an accrual of an arrearage while the defendant performed the detailed job searches ordered by the court as indicated earlier in this decision.

FN7. The defendant's surgeon has cleared him to return to work as of Monday, May 2, 2011..  FN7. The defendant's surgeon has cleared him to return to work as of Monday, May 2, 2011.

Adelman, Gerard I., J.