John G. Watson v. Sharla D. Watson (2011)

MEMORANDUM OF DECISION

This matter comes to the court for a dissolution of marriage final hearing with an unusual history.   The case was filed at the very beginning of 2009 with a return date of early February.   The defendant was served in hand, but has declined to participate in the proceedings.   There have been at least eight hearings including the final hearing over the two-and-one-half-year history of this case.¹  The defendant has appeared at only two of those hearings in response to a subpoena issued by the court at the court's expense.   She has declined to file a financial affidavit with the court, has not provided any of the mandatory disclosure and has not complied with the court's order to complete the Parenting Education Program as required by Connecticut Practice Book § 25–5.

The court, and the plaintiff, have afforded the defendant every possible opportunity to participate in this matter but to no avail.   In August of 2009, the court (Frazzini, J.) declined to enter judgment despite the fact that proper service had been accomplished and the defendant was aware of the proceedings because it simply felt “uncomfortable” do so given the facts of the case.   Eventually, a guardian ad litem (GAL) was appointed for the six minor children involved ² and later, a guardian ad litem (GAL) was appointed for the defendant.

At a hearing on February 24, 2011, slightly more than two years after the return date, the court (Adelman, J.) heard testimony regarding the reasons for the defendant's failure to participate in the pending matter at a hearing on the GAL for the minor children's motion for permission to file a motion seeking a psychological examination of the defendant.   The testimony offered by the plaintiff, the GAL for the defendant and the GAL for the minor children indicated that, although the defendant might be suffering from some generalized depression and/or anxiety, there had been no diagnosis of depression by a past or currently treating mental health provider.   The professionals in the matter arranged the case to be referred to the Early Intervention Program (EIP) that is available at the Hartford court.   That program employs the services of a mental health professional along with an attorney to assist the parties in reaching a settlement before trial.   They hoped that the mental health professional might be of assistance in moving the case along by working with the defendant.   The defendant refused to come to court for the scheduled EIP session.   The evidence was quite clear that the defendant simply chose not to participate and, in fact, she told her GAL in February 2011 that she would not participate whatsoever in any future proceedings

The court granted permission for the GAL to file the motion, but then denied the motion for evaluation, noting that the family finances were already overly burdened by the protracted proceedings and that there was no clear evidence of any mental illness or condition.   An adult has the right to make decisions for themself and then must live by the consequences of that decision.   The court, given the ages of the children and the lack of any attorneys active in the case, vacated the appointment of the GAL for the defendant and converted the GAL for the children to an attorney for the minor children (AMC).

At the scheduled trial for the matter only the plaintiff and the AMC appeared.   The AMC reported numerous efforts to communicate with the defendant about the trial date and to seek some level of participation, but to no avail.   The plaintiff also testified that the defendant was well aware of the trial date and of his intention to proceed.   The plaintiff testified that the marriage failed as a result of his wife's mood swings and anger issues.   His testimony in this regard was credible and he was visibly upset by proceeding with the dissolution.   The court did not note any bitterness or vindictiveness during his testimony;  he gave every indication of a person who had tried hard but was not able to do anything further.

The parties have been married for twenty-two years.   They have seven children, two of whom are over the age of majority and are attending college in Missouri.   The five minor children range in age from seven to sixteen.   The husband has a BA degree and is employed as a personal trainer at a salary of $80,000 per year and enjoys excellent health benefits as a benefit of his employment.   His wife is a certified surgical technician and he believes she holds an Associates Degree that afforded her that certification.   She earns $18 an hour, but only works one day a week averaging 6 to 8 hours depending on the week.   The testimony suggested that the defendant's work schedule was a matter of choice and not a product of any restrictions due to health issues, including mental health matters.

The family's assets are limited.   They own a home in Manchester, Connecticut that the plaintiff valued at $125,000.   The property was obtained through the Habitat For Humanity program and is encumbered by a twenty year, interest free mortgage.   There are about nine years left on that obligation with a principal balance of approximately $30,000.   This extremely affordable mortgage obligation allows this rather large family to maintain itself primarily on the plaintiff's salary.³  A refinancing of the present debt could be more expensive as it would not be an interest free loan.   The testimony at trial did not indicate the cost of the real estate taxes and homeowner's insurance within the monthly mortgage payment, making it difficult to calculate the potential monthly payment that might be required after a refinancing of the mortgage debt.   One other asset of the parties is a joint savings account with approximately $11,000 on deposit as of June 8, 2011.   The plaintiff also testified that there is a tax refund check for some $2,000 to $3,000 which was received.   He believes it is in the house and he testified that he did not endorse it so he believes it has not been cashed.   Finally, he has a deferred income asset with a stated value of $2,800.⁴

The AMC provide the court with proposed orders and made extensive argument in support of those orders.   Additionally, since the AMC had been the GAL for the children previously, she was able to provide the court with some additional information about the family.   Much of what she provided supported the testimony given by the plaintiff especially as it related to the problems in the marriage and parenting skills of each party.   She argued to the court that the plaintiff is far better equipped to deal with being a single parent than is the defendant.   He appears to be more in tune with the children's needs and able to provide the necessary parenting each child requires.   The defendant, on the other hand, has a tendency to become overwhelmed on occasion.

The court makes the following findings:

1. The court has jurisdiction in this matter;

2. All statutory stays have expired;

3. The allegations of the complaint are proven to be true;

4. Neither party bears a greater degree of fault for the breakdown of the marriage than does the other;

5. The defendant's current income is not reflective of her earning capacity.   The court finds that the defendant has an earning capacity of $23,400 per year based on working an average of 25 hours weekly at her current rate of $18 per hour;

6. The refusal of the defendant to participate in the proceedings is the direct and only cause of the instant matter pending for almost two and one-half years and the resultant additional costs;

7. Had the family remained intact, it would have clearly been the goal of the parties to support their children in their post-secondary educational pursuits;

8. The presumptive child support amount to be paid by the defendant to the plaintiff in accordance with the Connecticut Child Support Guidelines is $68 per week based on a presumed weekly income of $360 (20 hours @ $18 per hour) with the defendant contributing 11% to unreimbursed medical and dental expenses for the children and 20% of any reasonable and necessary child care costs;

9. The court finds that application of the Child Support Guidelines would be inappropriate and unreasonable given the circumstance of this family and deviates to a zero child support payment with no contribution to the medical and or dental expenses and no contribution to child care expenses at the current time;  and

10. The affidavit of fees provided by the AMC, including her work previously as GAL for the minor children, is found to be fair and reasonable based on the issues in this case, the degree of work performed and the hourly rates used.   Her requested fee of $8,144.50 is found to be a fair and reasonable fee.⁵

The court, having heard the testimony and in consideration of the relevant statutory criteria, HEREBY ORDERS:

1. The marriage of the parties is dissolved;

2. The plaintiff is awarded sole custody of the five minor children, to wit:

Jael Rebecca Suzanne Watson (DOB 12/30/1994),

Leah Grace Revel Watson (DOB 8/11/1996),

Anna E.M. Watson (DOB 2/3/1998),

John G. Watson, III DOB 10/2/1999) and

Titia K.F. Watson (DOB 1/25/2004);

3. The defendant is granted parental access as follows:

a.  Every Tuesday and Thursday from after school (or 3:30 PM if there is no school) to 7:30 PM. It will be the defendant's responsibility to provide dinner and assist with homework during said time period;

b. Every Sunday on a two-week rotating schedule.   For Week # 1 the access would be from 9 AM to 4 PM and for week # 2 from 12:30 PM to 7:30 PM.

c. Said schedule is to commence with the first week following the defendant vacating the marital home;

d. Memorial Day with plaintiff in even years;  defendant in odd years;

e.  July 4th with defendant in even years;  plaintiff in odd years;

f. Labor Day with plaintiff in even years;  defendant in odd years;

g. Thanksgiving Day with defendant in even years;  plaintiff in odd years;

h. Christmas Eve with plaintiff in even years;  defendant in odd years;

i.  Christmas Day with defendant in even years;  plaintiff in odd years;

j. Good Friday Day with plaintiff in even years;  defendant in odd years;

k. Easter Sunday with defendant in even years;  plaintiff in odd years;

l. Mother's Day shall always be with the defendant and Father's Day shall always be with the plaintiff;

m. All holidays shall run from 10 AM to 8 PM;

n. Such other times as the parties shall agree.

4. The plaintiff shall keep the defendant informed of all pertinent information concerning the children including but not limited to medical appointments and care, educational progress, religious upbringing and extra curricular activities;

5. The sole custody order shall not be interpreted to deny access by the defendant to any of the children's medical or educational providers or to any of the children's activities that are open to parents or the general public;

6. The defendant shall complete the Parenting Education Program and provide proof of such completion to the court no later than September 30, 2011;

7. The defendant shall meet with and commence treatment with a therapist of her choice in order to investigate and/or address her issues concerning parenting, anxiety, stress, anger and/or depression that might impede her ability to parent her children successfully and to co-parent successfully with the plaintiff.   The AMC shall assist the defendant by providing her with a list of recommended therapists skilled in such matters and the defendant shall sign all appropriate authorizations to allow the AMC to consult with the chosen therapist regarding a recommendation to the court of an expanded parenting access plan and/or a modification of the custody order to joint custody.   The cost of such therapy shall be the responsibility of the defendant.   In order to carry out the provisions of this order, the AMC shall remain active in this file until December 31, 2011;

8. No child support is ordered at the present time and no contribution to child care or medical and dental expenses for the minor children;

9. The plaintiff shall provide medical and dental insurance coverage for the children both minor and adult if such coverage is available to him at reasonable cost defined as not exceeding 7.5% of his net income.   The defendant is also ordered to provide such insurance coverage if available to her place of employment at reasonable cost not to exceed 5% of her net income;

10. The plaintiff shall be entitled to claim as dependents, for tax filing purposes, all of the children with the exception of the youngest child, Titia.   The defendant shall be entitled to claim Titia for that purpose;

11. The court shall retain jurisdiction regarding any and all post-secondary educational expenses for all of the children of the marriage in accordance with CGS § 46b–56c;

12. Each party shall pay $1.00 per year alimony modifiable only by the State of Connecticut.

13. The State of Connecticut's rights, statutorily and otherwise, against both the plaintiff and the defendant, jointly and severally, are reserved;

14. The plaintiff shall pay to the defendant periodic alimony in the amount of $150 per week.   Said alimony is to terminate upon the death of either party, the remarriage of the defendant or June 15, 2021.   Said alimony shall be subject to the provisions of Connecticut General Statutes, as amended, § 46b–86(b).  Said alimony shall be nonmodifiable as to term only and the defendant is granted a safe harbor as to modification as long as her weekly gross income does not exceed $450;

15. The real property located at 80 Wells Street in Manchester, Connecticut shall be the plaintiff's and the defendant shall execute and deliver to him a quit claim deed transferring all of her right title and interest to the plaintiff;

16. The transfer of the real property shall be subject to a payment by the plaintiff to the defendant in the amount of $47,500, representing her one-half share of the current equity in said property.   Said payment shall be made as follows:

a.  Within 120 days provided that the plaintiff is able to secure refinancing for the current mortgage obligation resulting in a monthly payment, including insurance and taxes, not exceeding $650 per month.

b. If;  after a good faith effort, the plaintiff cannot secure such financing, then said payment shall be made no later than 120 days following the payment in full of the current mortgage obligation.   Such payment to the defendant shall be secured by a mortgage note and deed executed and delivered by the plaintiff to the defendant and shall carry an interest payment of 3% per annum.   Interest shall commence as of the date of this Judgment;

c. In the event that order “b” above is the operative order, the plaintiff shall hold harmless and indemnify the defendant from all liability resulting from the ownership and maintenance of the real property.

d. The court shall retain jurisdiction over the real property until payment to the defendant has been made in full.

17. The defendant shall vacate the marital home no later than July 31, 2011;

18. The plaintiff shall pay to Attorney Sandi B. Girolamo, the attorney for the minor children her fee in the amount of $8,144.50 from the joint savings account shown on his financial affidavit.⁶  The balance of the funds shall be the defendant's free and clear of any claim by the plaintiff.   This shall be done within seven (7) business days of receipt of the Memorandum of Decision;

19. The defendant shall own, free and clear of any claim of the plaintiff;  the 2002 Dodge Grand Caravan motor vehicle.   The plaintiff shall transfer title to her within thirty days.   The defendant shall be solely liable for all costs associated with the ownership and or operation of said vehicle except for any taxes that are due and payable as of the date of this judgment.   Such taxes would be the responsibility of the plaintiff;

20. The 2010 Hyundai Elantra shall be the sole property of the plaintiff and he shall be solely liable for all costs associated with the ownership and or operation of said vehicle;

21. The 1996 Toyota Avalon and the 1995 Toyota Camry shall be transferred, one each, to the party's adult daughters who are the current primary users of said vehicles;

22. The defendant shall be entitled to remove all of her personal possessions and clothing from the marital home.   The parties shall divide the rest of the personal property, not including the children's furniture and possessions, in as equal a manner as possible.   Any dispute of such division shall be referred to Family Services in the Judicial District of Hartford for resolution.   In the event said intervention is not successful, the parties shall submit to binding arbitration and share equally the cost of such process;

23. The defendant shall keep as her property the tax refund check(s) received by the parties for tax year 2010.   If such checks do not currently exist, this specific order shall be vacated;

24. Each party will retain, free and clear of any claim by the other, any bank accounts, investment accounts, retirement assets and/or pensions currently in their individual name;

25. Each party shall be responsible for their own health insurance and any legal fees incurred in this process.   Each party shall provide all required assistance the other may require in obtaining health coverage under COBRA as long as such assistance does not involve any financial cost to the assisting party.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The eight hearings represent only hearings at which orders were entered and do not include any status conferences or judicial pretrials..  FN1. The eight hearings represent only hearings at which orders were entered and do not include any status conferences or judicial pretrials.

FN2. At the time of the final hearing, only five children were still minors..  FN2. At the time of the final hearing, only five children were still minors.

FN3. The monthly mortgage payment including taxes and insurance is $634 according to the plaintiff's financial affidavit..  FN3. The monthly mortgage payment including taxes and insurance is $634 according to the plaintiff's financial affidavit.

FN4. There is a bank account in the defendant's name that holds approximately $1200 belonging to the two oldest children.   It represents money earned and/or raised by them to fund a religious-based trip to Mexico this summer..  FN4. There is a bank account in the defendant's name that holds approximately $1200 belonging to the two oldest children.   It represents money earned and/or raised by them to fund a religious-based trip to Mexico this summer.

FN5. The total is a combination of the two bills submitted and an award of fees for time spent on the day of trial..  FN5. The total is a combination of the two bills submitted and an award of fees for time spent on the day of trial.

FN6. The affidavit reflects a balance of $11,000 and the testimony at trial indicated that there might be check in the approximate amount of $1,000 already drawn against that balance by the defendant..  FN6. The affidavit reflects a balance of $11,000 and the testimony at trial indicated that there might be check in the approximate amount of $1,000 already drawn against that balance by the defendant.

Adelman, Gerard I., J.