Alcione Oliva v. Manuel Oliva (2011)

MEMORANDUM OF DECISION

This action for dissolution of marriage and other relief was brought to this Court on January 19, 2010.

The case was tried to this Court on June 9 and June 13, 2011.   The plaintiff was represented by Attorney Douglas J. Lewis.   The defendant was represented by Attorney Deborah L. Grover.   The guardian ad litem for the minor children is James R. Mulvey.

The court listened to and observed the witnesses and reviewed the exhibits.   In addition, the Court has carefully considered the criteria set forth in the relevant Connecticut General Statutes in reaching the decisions reflected in the orders below.

The court finds the following facts.   The plaintiff, whose maiden name was Alcione Garcia, and the defendant were married on October 2, 2004 in Danbury, Connecticut.   One party resided continuously in the State of Connecticut for at least twelve months prior to the commencement of this action.   The Court heard testimony from Denise Callahan, the Family Relations counselor, who issued a thorough and insightful comprehensive evaluation report.   Ms. Callahan's findings were also supported by the children's guardian ad litem, Attorney James R. Mulvey.   Mr. Mulvey concurred with the findings of Ms. Callahan, and testified that her recommendations were in the best interest of the minor children.   The Court concurs with the findings of the family relations counselor and guardian ad litem, and finds that their recommendations are in the best interest of the minor children.

The marriage between the parties has broken down irretrievably without any reasonable prospects of reconciliation.   There are two children issue of this marriage:  Gabriella and Albert.   Both of the children are recipients of HUSKY benefits from the State of Connecticut.

Ms. Alcione Oliva and Mr. Manuel Oliva began dating in 2000.   Albert Oliva, their elder child, was born on October 1, 2002, and the parents had an on-again/off-again relationship.   They eventually married on October 2, 2004 and Gabriella, their younger child, was born on September 25, 2005.   The family has always lived in Danbury, Connecticut.

Within days of their wedding, the defendant presented a pre-nuptial agreement to the plaintiff in order to protect his business interests.   While the plaintiff was fully aware of the existence of the defendant's asphalt business, it is significant that he does not list it on his property list attached to the document as “Schedule A.” The plaintiff sought legal representation and the parties agreed to change the proposed provision concerning alimony.   The pre-nuptial agreement was signed by the parties the day before they were married.   The Court finds it to be valid, having met all of the necessary criteria.

This was Mr. Oliva's first marriage.   Ms. Oliva was previously married in 1992 and divorced in 1997.   She has one child from that marriage, Michelle Fajedo Lopes (DOB:  2/3/94).   The parents shared custody of their daughter but, when she reached age fourteen, she lived primarily with her father so that she could attend the high school in Southbury.   Michelle Lopes has recently moved back in with her mother.

Alcione Oliva is originally from Brazil, arriving in the United States in 1989.   Manuel Oliva is a native of Portugal.   His family moved here many years ago as well.   Ms. Oliva's mother and two sisters live in this area and Mr. Oliva's two brothers and parents live here also.   Mr. Oliva and his brothers own a paving business.   His hours are flexible but he is generally working from Monday through Friday with weekends off.   The plaintiff owned a commercial cleaning business that she testified dissolved last year after one of her main clients shut down its facility.   She now works part-time based upon when she picks up residential or business cleaning jobs.

The Plaintiff filed for dissolution of marriage in April 2010 at which time the parents separated, with the mother moving out with the children.   She moved into a three-family home that she has owned since 2001.   Ms. Oliva and the children live in the lower level, which is a small, neat, well-maintained, two-bedroom apartment.   The upper floor and the studio apartment in back of the house are both rented out.   The defendant lives in the marital residence.   It is a small cape on a quiet road.   The house has a finished basement, kitchen, living area, and a small backyard with a swing set for the children.   There is a playroom on the main floor and two bedrooms upstairs.   Albert shares a bedroom with his father.   The home is very clean and well-maintained, just as is the mother's.

The site of the defendant's paving business, on Old Hawleyville Road in Bethel, borders the home of the paternal aunt and uncle, Jose and Dalila Oliva.   They are married with two teenage children and this family has regular contact with Albert and Gabriella.   The children visit with them after school.   The defendant reports that he is there as well while the plaintiff indicates that the father relies upon his sister-in-law as after school daycare.   The plaintiff has a flexible work schedule and so is available to the children after school.   If there is a conflict, her sisters are available to care for the children.   The parents agree that their communication is “not good” but they are able to communicate by phone regarding the children if the need arises.

The children, Albert and Gabriella are in “excellent health,” although Albert has always had a somewhat chronic gastrointestinal issue associated with acid reflux.   He takes medication to treat this issue.   The children's immunizations are up-to-date and the children appear well cared for by the parents.

Albert is currently in the second grade and Gabriella is in kindergarten.   Albert is doing extremely well academically and socially.   Albert is “happy-go-lucky” and there is “no difference in him whether he comes to school from mother's or father's house.”   Albert is doing unusually well.   Gabriella's school records indicate the recommendation that she repeat kindergarten.   Gabriella is not ready for first grade due to her personality and maturity level, not as a result of the divorce.

The parties' marital problems began in 2005 about the time their second child was born.   The Court finds that the defendant is primarily responsible for the breakdown of the marriage.   The Court credits the plaintiff's testimony that the defendant was emotionally abusive and controlling toward her.   To this day, they have difficulty getting along, even regarding issues basic to the children's welfare.   Nevertheless, both parties are good parents in nurturing their children.

The plaintiff is 40 years old, in good health, and works as a self-employed house cleaner.   During the marriage, the plaintiff operated a cleaning business for a time which is now operated by her sister.   She works for her sister sporadically and it is difficult to determine what income she derives from it since accurate accounting is unavailable.   It is troubling to the Court that she received a 1099 form in 2010 for a business she claims she no longer owns.   The Court finds that the cleaning business is operated as if she owns it, or at the very least, has an ownership interest.   Although she testified to no longer owning the business, she has no credible explanation for the 1099 issued to her for a business she no longer operates, or why she continues to prepare invoices for Sonics.   Much of her cleaning income is in the nature of cash payments, which she testified she uses to buy groceries.

Additionally, it is difficult to determine the plaintiff's true rental income given her testimony that some of her rent is given to family members who, in turn, pay her mortgage.   The Court finds that the income and expenses which are listed on the plaintiff's financial affidavit are not reliable as they lack adequate documentary support.   Both of her business entities receive cash income which are neither supported by invoices nor written contracts or leases.

The full and frank disclosure of financial information is a fundamental requirement in a marriage dissolution.  Billington v. Billington, 220 Conn. 212, 221 (1991).   Concomitantly, a misrepresentation of assets and income by a party “is a serious and intolerable dereliction ․ which goes to the very heart of the judicial proceeding.”  Casanova v. Casanova, 166 Conn. 304, 305 (1974).   Because the plaintiff has been deceptive in her disclosure of financial information and because the Court has been unable to discover the precise extent of her net income due to the plaintiff's failure to maintain appropriate financial documentation, the Court is forced to approximate the plaintiff's net income from her businesses.  “Where a party's own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award.”  Rosenfeld v. Rosenfeld, 115 Conn.App. 570, 581 (2009).

The Court finds that the plaintiff receives a gross weekly income of $540, less deductions.

The defendant, age 47 and in good health, is in the asphalt business with his two brothers.   They have five employees and the business grosses over $1 million per year.   The defendant claims 9 months of salary annually, and 3 months of unemployment compensation.   The Court finds that the defendant's income also consists of cash received from snow plowing, primarily done by his brother, which is also not reflected on his financial affidavit.   Neither his brother's family nor his parents pay rent on the property owned by the business.   The Court finds that the defendant's gross weekly income is $933, less deductions.

In 2005, the parties purchased a 38–foot motor home which is a source of contention.   Initially, neither party claimed to have an ownership interest in the vehicle since it has negative equity.   The RV was purchased by the parties in 2005 and put in the plaintiff's name.   She contributed $10,000 to the $120,000 purchase price.   The Court finds that the defendant had primary use of the vehicle during the marriage.

The Court has considered the provisions of § 46b–82 regarding the issue of alimony, the provisions of § 46b–81(c) regarding the issue of property division, the provisions of § 46b–62 regarding the issue of attorneys fees, the provisions of § 46b–56(c) regarding the issue of educational support orders, and the provisions of § 46b–84 and the child support guidelines as they relate to the award of child support.   Based on the foregoing, the Court orders the following:

ORDERS

1. The marriage of the parties is dissolved on the basis of irretrievable breakdown.

2. Custody and Visitation.   The parties shall have joint legal custody of their minor children.   The parents shall share physical custody with the father having parenting time every Monday and Tuesday and the mother every Wednesday and Thursday with an alternating weekend schedule from Friday after school through Monday drop off at school.   The holiday and vacation time should supersede the regular parenting schedule.   The parties shall share holiday and vacation time per mutual agreement.   If they cannot reach an agreement, the following holiday/vacation schedule shall control.   The parents will share and alternate the Christmas holiday.   During odd numbered years, the father shall have parenting time from 10:00 a.m. on Christmas Eve through 10:00 a.m. on Christmas Day and the mother from 10:00 a.m. on Christmas Day through 10:00 a.m. on December 26th.   During even numbered years, the reverse shall occur.   The parents shall alternate the Thanksgiving holiday yearly from 10:00 a.m. on Thanksgiving Day until 10:00 a.m. on Friday after Thanksgiving.   The mother will have parenting time during odd numbered years and the father during even numbered years.   The Fourth of July holiday from 10:00 a.m. on July 4th through 10:00 a.m. on July 5th shall be alternated annually with the father having the odd numbered yeas and the mother having the even numbered years.   Whenever a parent has regular parenting time during the weekend preceding a Monday holiday, that parent access time shall be extended through that weekend until drop off at school on Tuesday, or until 10:00 a.m. if school is not in session.   The mother should have parenting time on Mother's Day and the father on Father's Day from 10:00 a.m. until 7:00 p.m. Whichever parent does not have regular parenting time on a child's birthday should have the option of having two hours of parenting time so long as they provide the other parent with at least 24 hours advance notice.   That parenting time should not interfere with any celebration plans which the other parent may have.   The parties should have the option of up to three weeks of vacation time, taken non-consecutively, provided they give the other parent at least 30 days advance notice.   If there is a scheduling conflict, the father should have the first choice during odd numbered years and the mother during even numbered years.   If a parent is traveling with the children, that parent should provide the other with a detailed travel itinerary.

Each of the parties shall keep the other reasonably informed of the whereabouts of the children while the children are with the plaintiff or with the defendant, and if either has any knowledge of any illness, accident or other circumstances seriously affecting the health, education or welfare of the children, the plaintiff or the defendant, as the case may be, will promptly notify the other.

In the event of the illness or personal injury of a child, the first party to learn of such illness or injury shall notify the other party immediately and each party shall keep the other reasonably informed of the whereabouts of the child.   In the event of any change in the medical situation of a child, the first party to learn of the same, shall notify the other immediately, and each party shall continue to keep the other party reasonably informed of the child's condition.

The parties shall exert every reasonable effort to maintain free access and unhampered contact between the children and each of the parties and to foster a feeling of love and affection between the children and the parties hereto.   Each parent shall be permitted daily phone contact with the children at a reasonable time during the children's waking hours.

Neither party shall do anything which may estrange the children from the other party or injure the children's opinion as to the children's mother or father, or act in any way as to hamper the free and natural development of the children's love and respect for the other party.

Each parent shall be aware of the location of the minor children and have the ability to contact the minor children if needed.   Neither parent will prevent the children from contacting the other parent or returning the other parent's phone call.

The parties shall be entitled to immediate access from the other party and from third parties, to medical, dental, health and school or educational records.   To that end, the parties shall notify the appropriate authorities regarding the release of such information and, if necessary, shall immediately provide such written authorizations as may be necessary to obtain the release of such information.   Each party shall be entitled to all reports from third persons and shall be entitled to “parent tickets” for any special event involving their children's lives.

Neither party shall establish a new residence which would change the children's school or is greater than a twenty (20) mile radius of their present residences in Danbury, Connecticut, without first notifying the other in writing ninety (90) days prior to any relocation, setting forth his/her intention together with his/her intended residence, and securing written permission from the other parent or court permission to relocate.

Neither parent shall travel with the children outside of the United States without the written specific permission of the other parent and an authorization to release the children's passports for that travel.

3. Child Support.   The Court finds that the basic presumptive child support is $190, per the attached child support guidelines worksheet.*

The defendant is ordered to pay to the plaintiff $200 weekly in child support.   The Court finds that a shared custody deviation is not warranted because sufficient funds do not remain for the parent receiving support to meet the basic needs of the children after deviation.

The father shall continue to pay the children's private grade school tuition at their current school.   This education provision shall be deemed in the nature of support.

The father shall be entitled to claim the dependency exemptions for the minor children.

The children shall continue to be covered by HUSKY medical insurance pursuant to the Proposed Orders of the State of Connecticut dated August 24, 2010, which are incorporated by reference and made part of the Court's judgment.

A contingent wage withholding order shall issue.

4. Educational Support Order.   The Court shall retain jurisdiction to enter an educational support order pursuant to statute § 46b–56c.   The Court finds that the parties would more likely than not have provided support for the children's higher education if the family had remained intact.

5. Alimony. The defendant shall pay alimony to the plaintiff in the amount of $50.00 weekly for a period of three years.   The payment of alimony shall be non-modifiable as to term.   The payment of alimony shall terminate upon the death of either party, remarriage by the plaintiff or cohabitation by the plaintiff pursuant to General Statutes § 46b–86(b).  The first payment shall be paid by the defendant on October 24, 2011 and weekly thereafter.   The five-year prohibition against alimony has expired, as of the date of trial, in the pre-nuptial agreement.

A contingent wage withholding order shall issue.   In determining alimony, the court based it upon the net earnings of the parties.

The provisions of § 46b–86(a) and § 46b–86(b) are applicable.

6. The defendant is awarded sole ownership of the motor home/RV and shall be solely responsible for any debt existing and hold the plaintiff harmless of same.   The plaintiff shall take all necessary steps to convey title of the vehicle to the defendant.

7. The defendant shall be responsible for 75% of the GAL's fees, and the plaintiff shall be responsible for 25%, with credit given to each party for payments made.   Said amount shall be paid within 30 days of this decision.

8. Attorneys fees.   Each party shall pay his or her own attorneys fees.

9. Except to the extent otherwise ordered by the court in this decision, division of the parties' assets, liabilities, and property shall be governed by their pre-nuptial agreement dated October 1, 2004.

BY THE COURT,

Marano, J.

*Editor's Note:  The referenced worksheet has not been included with the reported opinion.

Marano, Richard M., J.