Christy Vascianna v. Mark Vascianna (2012)

MEMORANDUM OF DECISION

This matter was tried before the court on March 14, 2012.   The plaintiff and defendant testified and exhibits were introduced.   The court has considered all the credible evidence presented to it and carefully considered the respective criteria for a judgment of annulment of the marriage, judgment of dissolution of the marriage, alimony and award of counsel fees.   The court makes the following findings of facts and orders:

The parties were married on December 30, 2010 in South Windsor, Connecticut.   One of the parties has resided in the State of Connecticut for more than one year prior to bringing this action.   No minor children have been born to the wife since the date of the marriage and she is not presently pregnant.   The parties are not receiving state assistance.

The plaintiff is 41 years old and has been employed as a legal assistant for eleven years.   She recently completed her litigation paralegal studies at the University of Connecticut but is not currently employed as such.   She earns approximately $26,000 per year.

The wife suffers from hypertension and is a diabetic.   She was recently hospitalized and treated for cysts and renal failure.

The defendant was born in Jamaica and came to this country as a visitor in January 2009.   He initially resided with a friend in Maryland and relocated to Connecticut in early May 2010 to assist his elderly aunt with the care of an orphaned grandchild.

The defendant described himself as a handy guy and earns his living shoveling snow, mowing lawns, repairing cars and working construction jobs for family and friends.   He also testified his aunt in Queens, N.Y. helps to support him.

Mr. Vascianna is the father of two minor children living in Jamaica.   He sends the bulk of his income to Jamaica to support them.

The plaintiff and defendant met in November 2010 through a friend who referred the plaintiff to the defendant for car repairs.   When the couple met the defendant lived with his aunt and nephew in East Hartford and the plaintiff lived in Manchester, CT with her son, a full-time college student.

The plaintiff was told by the defendant that his aunt's home in East Hartford was about to be foreclosed.   The wife anticipated the couple would live together in her Manchester, Connecticut apartment.

The plaintiff testified that she anticipated a 1–2 month delay in the defendant's move to Manchester and conceded further delays due to the 2011 winter weather.   However, as the months dragged on the plaintiff was persistent in getting a commitment from the defendant about commencing cohabitation.

Mr. Vascianna was unwilling to move into the Manchester apartment and in May 2011 admitted he lied to the plaintiff about his whereabouts.   He told her he was in New York City during the same time he purchased MoneyGrams at Walmart on Flatbush Avenue in Hartford.

Mrs. Vascianna testified that on May 23, 2011 she was at home not feeling well because her diabetes was not well controlled.   Mr. Vascianna was in her kitchen talking on the telephone to someone.   The defendant insisted he was speaking to George but the cell phone indicated he was talking to Georgette.   The defendant refused to allow his wife to verify he was speaking to a man, put his cell phone in his pocket and walked out of his wife's apartment.

The couple discussed their marital problems on May 29, 2011 with the defendant admitting he was not cut out for marriage, it was too much responsibility.   He suggested the couple continue to live separately and offered the plaintiff money to remain married.   The plaintiff was shocked, stunned and surprised that he would suggest such an arrangement.   She persuasively testified that she married for love, intended to build a life with her husband including bringing his two children to the United States.   The court notes that the defendant never denied he suggested payment to his wife in exchange for remaining married.

Mrs. Vascianna was aware of the defendant's immigration status when they married.   Subsequent to the marriage she accompanied her husband to an immigration lawyer's office to file a Form I–130—Petition for Alien Relative;  Form I–485—Application to Register Permanent Residence or Adjust Status;  and Form I–864—Affidavit of Support on March 10, 2011 (Ex. 1).   Mr. Vascianna also signed similar forms.   The court notes that all forms in Exhibit 4 use the wife's Manchester address.

After this action was filed the defendant was involved in an automobile accident and received proceeds from a personal injury action.   The proceeds of the personal injury suit paid the balance of defendant's legal fees in the annulment action of $2,500 ($3,500 total) and put $4,167.67 in his pocket.   The plaintiff has unpaid legal fees in excess of $6,000.   The court finds the legal fees to be reasonable and necessary.

Issue

Based on the facts recited above, is the plaintiff entitled to an annulment or dissolution of the marriage?

Discussion

Connecticut General Statutes § 46b–40(b) provides that “an annulment shall be granted if the marriage is void or voidable under the laws of this state or the state in which the marriage was performed.”

It is the plaintiff's burden of proof to prove the grounds for annulment.   Fattibene v. Fattibene, 183 Conn. 433 (1981).  “A petition for the annulment of a marriage requires of the court hearing ․ great caution and demands clear proof.”  Davis v. Davis, 119 Conn. 194 (1934).  “It must find that the conditions leading up to and surrounding the marriage have been established by clear and convincing evidence to be such as to render the marriage void or voidable.”  Trotta v. Trotta, 5 Conn.Sup. 218 (1937).  “An annulment is not favored.”  Durham v. Miceli, 15 Conn.App. 96 (1988).   Marriages are strongly favored by the law.   Existing marriages are presumed to be valid and that presumption has been described by the courts as very strong.  Carabetta v. Carabetta, 183 Conn. 344 (1980);  and Manndorff v. Dax, 13 Conn.App. 282 (1988).   Carabetta found the public policy favoring marriages so strong that it upheld an unlicensed ceremony.

The plaintiff seeks an annulment based on the grounds that the defendant had no intention of cohabiting/living together as man and wife and lacked the requisite consent required for a valid contract.  Bernstein v. Bernstein, 25 Conn.Sup. 239, 201 A.2d 660 (1964).

The court finds the plaintiff's testimony persuasive that she would not have married the defendant if she knew the defendant had no intention to cohabit with her and was using the marriage as a vehicle to obtain a green card.   The plaintiff and defendant both agree that they never lived together during the marriage prior to the plaintiff filing for an annulment.   The defendant failed to provide the court with any reasonable explanation for his refusal to cohabit with the plaintiff and his subsequent offer of money to the plaintiff to remain married while living apart is conclusive evidence he was never willing to assume the obligations, duties and responsibilities of a normal marriage.

In the present case the plaintiff is essentially claiming the defendant married her solely to obtain a green card and the right to remain legally in the United States.

“It is the plaintiff's burden of proof to prove the grounds of annulment ․ A petition for the annulment of a marriage ․ requires of the court hearing it, great caution and demands clear proof ․ it must find that the conditions leading up to and surrounding the marriage have been established by clear and convincing evidence to be such as to render the marriage void or voidable.”   Ross v. Ross, Superior Court, Judicial District of Stamford–Norwalk at Stamford, Docket No. FA97–0162587 (1998) (Tierney, J.), 22 Conn. L. Rptr. 637.

In Schibi v. Schibi, 136 Conn. 196 (1949), the trial court's decision to deny an annulment and grant a dissolution was upheld by the Supreme Court.   The facts in Schibi are distinguishable from the case before the court.   In Schibi, the parties conceived a child out of wedlock, agreed to marry to give the child a name and annul the marriage six weeks later.   The court found the parties mutually consented to “the creation of the status of marriage for at least the limited period and purpose stated,” Schibi at 200.

In Bernstein v. Bernstein, 25 Conn.Sup. 239, 201 A.2d 660 (1964), the plaintiff sought an annulment due to the defendant's intention never to consummate or cohabit.   The Bernstein court noted the “fact of entry into marriage gives rise to a presumption that the parties intend to enter into a normal marital relationship.   This includes cohabitation and all the obligations, duties and responsibilities that go with a normal marriage.   When a party consistently and from the beginning refuses to do or assume any of these things, without evidence of ratification a cause for annulment exists.”

In the present case it is undisputed that the parties never lived together.   It is clear to the court that the wife anticipated living together as a married couple.

The court finds the plaintiff met her burden of proof of clear and convincing evidence that the defendant entered into the marriage under fraudulent pretenses.   The plaintiff's testimony that the defendant offered her money in late May 2011 to remain married is persuasive.   The defendant's immigration status, refusal to cohabit with the plaintiff and offer of money to remain married lead to the inevitable conclusion that Mr. Vascianna married the plaintiff for the sole purpose of obtaining a green card and legal residence in this country.   The court finds Mrs. Vascianna was completely unaware of her husband's intention not to cohabit or assume the duties and responsibilities of husband and wife.

ORDERS

1. A decree of annulment may enter on March 19, 2012.

2. The defendant shall pay the plaintiff's legal fees in the amount of $5,000.

SO ORDERED.

Holly Abery–Wetstone, PJ

Abery–Wetstone, Holly, J.