Isabella Mensah v. Charles Mensah (2012)

MEMORANDUM OF DECISION

The plaintiff wife initiated this action by way of a complaint filed on July 7, 2010, seeking the dissolution of the parties' marriage, based on irretrievable breakdown.   A fully contested trial was held before the undersigned on December 12, 15, 16 and 20, 2011.   Each party testified and was represented by very competent counsel.

The court has fully considered the criteria of Connecticut 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.

FINDINGS OF FACT

The court finds that it has jurisdiction of this matter and that all statutory stays have expired.   The parties have resided continuously in the state of Connecticut for at least one year.   Neither party has received state or local financial assistance during the marriage.   The allegations in the complaint have been proven and are true.   The marriage has broken down irretrievably with no hope of reconciliation.   This court also finds the following by a fair preponderance of the evidence:

The parties were married in Windsor Locks, Connecticut on August 30, 1991.   Three children were born to the parties:  Charles K. Mensah, born on August 20, 1991;  Andre O. Mensah, born May 11, 1992;  and Bianca I. Mensah, born January 24, 1995.   The plaintiff also has children from another relationship who have attained majority.   This court finds that the parties would have assisted the children with post-majority education had the family remained intact.

An incident of domestic violence resulted in a protective order against the defendant, protecting the plaintiff and the two children, one of whom is a minor and the other who is college age.

Lack of candor with the court and non-compliance with discovery on the part of both parties, but particularly the defendant, has made this court's determination of income or assets exceedingly difficult.   What this court can find is that the plaintiff is 51 years of age and has been employed by the U.S. Postal Service for many years.   She earns a base salary of approximately $600.00 per week and at various times has had overtime available to her.   She has earned a pension from this employment and has amassed a thrift savings plan that has a current value of approximately $92,000.00.   Her reported valuation of her pension is not realistic and its value is likely much higher than that which is stated on her financial affidavit.

The plaintiff has also practiced as a “day trader, with some success.   She has amassed a TD Ameritrade account from marital funds which has a current approximate value of $90,500.00, and several other accounts with smaller sums of money.   The parties own their family home at 101 Rockville Rd., Broadbrook, CT which has little to no equity and where the plaintiff and children currently reside.¹  While the defendant maintains that there is one property in Ghana valued at $30,000.00 ² which is owned by the parties, this court finds that there are three properties in the country of Ghana that family assets have been invested in over the years with an undetermined value.   The defendant has claimed to the plaintiff that he has an interest of approximately $360,000.00 in one of the properties.   The parties provided no personal property appraisals but this court finds that there is personal property in the family home valued at $35,000.00 including five bedroom sets and chandeliers valued at $25,000.00.   The plaintiff drives a $74,000.00 Lexus and the defendant owns at least seven other vehicles.

The defendant is 53 years of age and is in good health.   Ascertaining the defendant's actual income in this case has been complicated by the fact that, throughout the pendency of this action and the trial, the defendant was not forthcoming with required discovery, was evasive and was not credible in his testimony.   The evidence established that he is the owner of an income producing business called “Gold Coast Shipping.”   The business purportedly involves the purchase and sale of cars transported to Ghana.   Specifically, the defendant purchases high-end automobiles in the United States at a low cost and ships them to be sold in Ghana for a profit.   The plaintiff credibly testified that the defendant's venture has been ongoing for some time and quite lucrative.   Exhibits such as multiple wire transfers, multiple certificates of title, emails, and bills of lading confirmed the plaintiff's testimony.   The defendant's claim that he only ships the occasional vehicle “on behalf of his uncle's charity” in Ghana was simply not credible.

Testimony and exhibits also established that the defendant owns an income producing delivery business called “Eagle Delivery Services” which the plaintiff claims has historically produced between $150,000 and $400,000.00 gross income annually.   The documentation produced by the defendant was sporadic and incomplete and was limited to just a few months of bank statements for this entity over a four-year period and a few tax returns.   In those statements, the business deposits to the bank account did not appear to be in sync with the gross receipts listed for that tax year on the defendant's tax returns.   For example, in tax year 2008, the defendant reported gross receipt and sales of $100,768.00 yet only four monthly business bank statements produced for discovery for that entire year reflected deposits in excess of $136,000.00.   In tax year 2009, the defendant reported gross receipts and sales of $115,000.00 yet he provided only two business bank statements for that year and those two months alone totaled $50,000.00.   Further, the defendant simply did not provide any income documentation whatsoever for the eight-month period prior to trial.³  This court finds that, at a minimum, the defendant has an earning capacity of $100,000.00 net income annually.

The defendant has historically had issues with respect to his credibility.   He was previously convicted of criminal impersonation by using the name of “Peter Mensah” for his financial gain and the evidence at trial established that he has continued to use that alias in his business and tax dealings.   For example, there was evidence presented that the defendant has an American Express credit card in the name of “Peter Mensah” and despite all evidence to the contrary, the defendant continued to claim, at trial, that Peter was his brother although the plaintiff credibly testified that the defendant has no brother named Peter Mensah.   The defendant claimed to have a former employee named Koffi Biko and testified that Mr. Biko had not worked for him since 2009.   Contrary to this assertion, the evidence established that a Koffi Biko is presently a certified driver on the defendant's 2011 certificate of insurance for his delivery company.   As another example, the defendant claimed that he (the defendant) was no longer driving for his own delivery company.   Again, the evidence established otherwise.

The evidence established systematic and ongoing conduct by the defendant designed to conceal his actual income and assets from the IRS, from the plaintiff and from this court and designed to perpetrate fraud upon the INS.⁴ This court finds that the defendant owns a productive, income producing shipping business as well as a lucrative delivery business.   It is also clear that the defendant has property interests in Ghana that have an undetermined value.   He has not been forthcoming with the court about any of these interests, about his earnings, or the fact that he continues to engage in those ventures.   Even taking into account the plaintiff's financial contributions to the marriage from her job with the U.S. Postal Service, it is clear to this court that the home, furnishings, automobiles and savings reflect a lifestyle that has been at variance with the defendant's claimed earnings.   There was simply no evidence presented of commensurate borrowing or other sources of income that would sustain such a lifestyle.

ORDERS

The court has fully considered the statutory criteria in carefully weighing the parties' requests for alimony and a property distribution.   This court has taken note of the domestic violence that has occurred in the home with respect to the plaintiff and children by the defendant and is mindful of the defendant's failure to disclose his accurate income and assets, his “foot-dragging” and outright noncompliance with the discovery process, and his attempts to mislead the court about the state of his finances.   The court also notes that the defendant has significant ties to his country of origin and that he has expressed to the plaintiff an intent to return to Ghana at some point.   These factors certainly suggest that any alimony order put in place by this court is not likely to be followed by the defendant.

After careful consideration of all of these factors, this court dissolves the marriage on the ground of irretrievable breakdown.

1. Custody and parenting time.   Given the age of the one minor child, this court orders sole custody of the minor child to the plaintiff and, mindful of the outstanding protective order, will leave the issue of contact between the defendant and child as a matter for the criminal court and to the plaintiff's and the child's discretion.

2. Alimony. There shall be no alimony awarded to either party.

3. Child support.   The defendant shall pay to the plaintiff as child support the sum of $283.00 per week, pursuant to child support guidelines.   This is a guideline child support amount based on attributing $1,923.00 net weekly income to the defendant and $600.00 net weekly income to the plaintiff, although this court believes that the defendant has seriously understated his income.   The parties shall share extracurricular expenses 50%–50% with a cap of $1,500.00 total annually for the minor child.

4. Educational expenses.   This court finds that it is the intent of the parties to assist their children with post-majority educational support and therefore orders that each party pay 50% of the post-majority educational expenses up to the UConn cap for the child Bianca and their college-age son Andre pursuant to the provisions of General Statutes § 46b–56c.   The court will also retain jurisdiction over this issue.

5. Medical. The plaintiff shall continue to maintain health insurance for the children's benefit so long as they are eligible.   The plaintiff and defendant shall each be responsible for 50% of all unreimbursed medical, dental, orthodontic and therapeutic expenses for the children so long as they are eligible to be covered by plaintiff's plan, as provided by the guidelines.   The provisions of Conn. Gen.Stat. § 46b–84 shall apply.

6. Property.

Marital home and furnishings.   The marital home is awarded to the plaintiff.   The defendant shall quitclaim all of his right, title and interest in the marital home located at 101 Rockville Rd. in Broadbrook, CT to the plaintiff within thirty days of the date of dissolution.   The plaintiff shall hold the defendant harmless on the mortgage, any current liens and associated expenses thereon.   The plaintiff shall make her best efforts to refinance the family home within a period of two years in order to remove the defendant's name from the mortgage.   This court shall retain jurisdiction over this issue.

Ghana Properties.   The defendant shall retain any property interests he may have in the properties in Ghana.

Gold Coast Shipping and Eagle Delivery.   The defendant shall retain any interests he may have in his businesses “Gold Coast Shipping” and “Eagle Delivery Services.”

Bank accounts/Retirement Accounts.   In allocating the marital assets that this court has been able to value, it has taken into account, among other things, the liens on the family home and the plaintiff's responsibility for her own attorneys fees.

Each party shall retain their respective retirement accounts free of any claim of the other.   The plaintiff's accounts, including the USPS Thrift Savings Plan, the USPS FERS pension, the Ameritrade account and any other savings or checking accounts in her name shall remain her sole property except that $40,000.00 shall be awarded to the defendant as his share of equity from these accounts.   Prior to any distribution of that amount to the defendant, up to $20,000 of outstanding attorneys fees owed to defendant's counsel shall be paid directly from the $40,000.00 distribution awarded to the defendant. $20,000.00 in attorneys fees owed to plaintiff's counsel shall immediately be paid to the plaintiff's attorney from the Ameritrade or other available account that has been allocated to the plaintiff.   Any remaining attorneys fees shall be the respective responsibility of each party.

Vehicles:  The parties shall each retain their own vehicles and shall execute any documents necessary to transfer title and registration to the other party.   They shall each be responsible for any debts on their respective vehicles.

7. Personal property.   The plaintiff shall retain all of the furnishings currently in the family home except that the defendant may select one complete bedroom set and one chandelier.   He shall make arrangements, with the cooperation of the plaintiff, to remove this property within a period of thirty days.   If he does not do so, the plaintiff may retain the property.   The defendant shall retain any personal furnishings in the Ghana properties.

8. Motor Vehicles.   The plaintiff shall retain her Lexus.   The defendant shall retain all other vehicles.   They shall each hold the other harmless for the debts and liabilities attached to their respective vehicles.

9. Pending Personal Injury cases.   Any proceeds acquired from the defendant's personal injury cases currently pending shall be divided 35% to the plaintiff, 65% to the defendant.

10. Tax filings.   The parties shall file their income taxes separately for tax year 2011 and each will be responsible for any liabilities owed on their respective tax returns.   The defendant shall be liable for any tax deficiencies in the years that the parties either failed to file their tax returns or filed jointly.

11. Tax exemptions/deductions.   The plaintiff shall be entitled to claim the eligible children as tax exemptions.

12. Funds in Escrow.   Any sums currently held in escrow are awarded to the plaintiff.

13. Liens, Loans and Credit Card Liabilities.   The parties shall each be responsible for credit card debts listed on their respective financial affidavits, holding the other harmless with respect to those liabilities.

14. Life Insurance.   For so long as the defendant has a child support and college education obligation, he shall maintain a policy of term life insurance in an amount sufficient to cover those obligations (the child support and one-half the cost of UConn for the child Andre and the child Bianca) through employment-provided insurance or a term life insurance policy, naming the children as beneficiaries.   The defendant shall send verification of that coverage to the plaintiff semi-annually.

15. Attorneys Fees. See “Bank accounts/retirement accounts” above.

SO ORDERED.

BY THE COURT,

Prestley, J.

FOOTNOTES

FN1. During the pendente lite period, the plaintiff was found in contempt for using some family assets to bring the mortgage up to date..  FN1. During the pendente lite period, the plaintiff was found in contempt for using some family assets to bring the mortgage up to date.

FN2. This value was provided by an “appraisal” of the property done by one of the defendant's friends or relatives who is not a certified appraiser..  FN2. This value was provided by an “appraisal” of the property done by one of the defendant's friends or relatives who is not a certified appraiser.

FN3. A review of other exhibits reflects that the defendant runs his personal expenses through his business account which has served to reduce any profits reported to the IRS. He has also overstated payroll expenses, again reducing any profits reported to the IRS..  FN3. A review of other exhibits reflects that the defendant runs his personal expenses through his business account which has served to reduce any profits reported to the IRS. He has also overstated payroll expenses, again reducing any profits reported to the IRS.

FN4. Evidence established that he gave the plaintiff's green card to a cousin to be used in an illegal manner..  FN4. Evidence established that he gave the plaintiff's green card to a cousin to be used in an illegal manner.

Prestley, Linda Pearce, J.