Shelley Montiero v. Paul Montiero (2012)

MEMORANDUM OF DECISION ON DISSOLUTION OF MARRIAGE

JURISDICTIONAL FINDINGS

The plaintiff filed this action for the dissolution of her marriage on January 18, 2011.   She lived in Connecticut at least twelve months before she did so.   The court found on the date of the hearing and reaffirms now that it has jurisdiction over this matter and that all statutory stays have expired.   The parties appeared through counsel on the day of the trial.   The parties have two children, issue of the marriage, ages 11 and nearly 10.   No others were born to the parties, and the plaintiff is not now pregnant.   The children are on HUSKY insurance, but the family received no other form of aid or welfare.   The allegations of the complaint have been satisfactorily proven and are found to be true.   The court finds that the marriage of the parties has broken down irretrievably without any reasonable possibility of reconciliation.   The marriage of the parties is, therefore, dissolved on the grounds of irretrievable breakdown, and the parties are declared to be single and unmarried.

FACTUAL FINDINGS

Any findings of fact in this matter must begin with the court's observations of defendant.   Despite repeated warnings and stern instructions from the court, he would not—or could not—control his actions and reactions in the courtroom.   He maintained a constant undertone of muttering, comments and interjections throughout the proceedings.   He talked over and interrupted both of the lawyers and even the court.   Less than an hour after a regular recess and without permission, he bolted from the witness stand announcing that he had to use the men's room.   Even when the court sanctioned him $25.00 for his abject failure to maintain even minimal courtroom demeanor and common courtesy, he failed to conform his conduct.   At one point the court asked him if there was any reason that he could not contain himself.   He said no, but the court is left to ponder whether an addiction to drugs and alcohol as alleged by his wife, contributed to his rude, almost bizarre, behavior in court.   His disrespect for his wife and her lawyer might be understood in the heat of a trial, but his conduct toward his own counsel and the court certainly undermined his credibility and lent credence to the allegations of plaintiff.   The court cannot imagine the person it observed in the courtroom successfully handling parental responsibilities.

Paul Montiero is a forty-year-old high school graduate who currently lives with his parents, notably a very short distance from the former marital premises.   He is a landscaper by trade, and he used to earn anywhere from $400–$700 per week.   Plaintiff credibly alleges and the court finds that defendant suffers from a very serious heroin addiction dating back at least to late 2008.   She testified that she caught him twice in the act of using hard drugs.   She further asserted that he drank and that his work ethic, moods and demeanor suffered as a result.

He testified that his home care business is currently in disarray.   He once had thirty-three clients but now has eight.   He hopes that the early spring weather will lead to more business, but despite his dire financial circumstances, he is currently working only sporadically “to space out his available jobs.”   He receives $200.00 per week from an unidentified state source that he turns over to his mother instead of paying any portion of his court-ordered child support.   He dismisses substance abuse as a cause of his current circumstances, instead blaming his wife for having him arrested on domestic violence charges and divorcing him.

Plaintiff is 34 years old.   She is a Licensed Practical Nurse working at a Manchester care facility.   She is the “charge nurse” who dispenses medications and enters the doctor's orders into the computer.   Her many responsibilities include interfacing with the doctors and nurse practitioners.   Her hours have diminished since she initiated the divorce because she must be available to care for her children when they are not in school.   As a “per diem” nurse, she fills in for others whenever there is a need, and she is available.   Since the first of the year her average gross weekly earnings are $316.00.

She attends community college in hopes of being admitted to Capitol Community College's Registered Nurse Program.   This course of study will take a year, but she then expects to earn $70,000.00 a year.

Plaintiff credibly testified about four specific instances of defendant's substance abuse.   He was prescribed Suboxone in late 2008.   Around Thanksgiving 2009 she found him lounging on the couch, unable to function.   She took the children to his parents' home for the holiday meal and left them in their care.   She threatened to file for divorce immediately, but defendant stayed clean for a while.   In March 2010 she smelled alcohol on the defendant and feared a drug relapse because she recognized a negative pattern of behavior in him:  yelling, vile language and accusations, drinking binges and paranoia.   His work suffered, and she would not leave the children with him.   She caught him using heroin in his parents' shed in April 2010.

At this point plaintiff determined to divorce her husband, but she feared his reaction.   In June 2010 he told her he would burn down their home with her in it if she ever left him.   She consulted a family lawyer in December 2010.   Defendant found the receipt for the attorney's services, and he threatened her with a “bullet to the back of her head.”   Plaintiff sought and received a Protective Order which stayed in place for a year.   Within ten minutes of being served with the order, defendant disobeyed it by telephoning plaintiff.   When the order was in effect, he would walk by the marital premises while she was cleaning it up for sale.   At some point he entered the house, flipped over the dining room table and caused other disarray.   He wrote numerous bizarre, threatening and unsettling messages about plaintiff and the children on the countertops and refrigerator in the kitchen.   See Plaintiff's Exhibit 1.

Defendant had at least two opportunities to retrieve his belongings from the former marital residence.   Plaintiff credibly testified that she arranged two four-hour “windows” for him to pick up his property on January 4, 2011 and another day in May. Defendant used the first opportunity to work on a lawnmower instead of retrieving items.   The second time his truck broke down.   He testified that he didn't need his tools until the fall, so “that he might as well wait until the house sells.”

Plaintiff prepared the house for sale.   She spent over $7,000.00 on cleanup and repair projects.   She hired a truck for $740.00 to move defendant's belongings to his mother's house down the street.   She admitted that she took a laptop computer, some small appliances and furniture, some of which she needed for the children, but she denies taking any of defendant's work equipment.   Defendant kept most of these tools in a shed on the premises.

The parties' realtor, Joe Coelho, credibly testified that he looked into this shed three or four times prior to the house closing in November 2011 and saw maintenance equipment.   He also noted that the house was unoccupied at the time and that the shed was unlocked.   Anyone could have gained entry and taken items, so the court does not credit defendant's claims that plaintiff took some of his more expensive equipment.   Mr. Coelho also testified that defendant was not cooperative throughout the sales process.   He insisted on a listing price significantly higher than that which the realtor suggested.   Eventually, the house sold at or near Mr. Coelho's originally suggested listing price, and the court concludes that defendant's stubbornness caused a delay in the sale which cost the parties some of their equity.

Defendant has not seen his children since January 7, 2011, a time period now well in excess of one year.   He filed motions for the return of personal property, but he never sought even supervised access with his children.   Plaintiff testified that he did not participate much in their schooling or attend their activities.   She seeks sole custody with access to defendant only if he completes drug rehabilitation and other conditions.

Plaintiff's testimony about defendant's behavior is corroborated by that of Heather Marie Nacca.   This witness testified that she knew and observed both parties since 2006.   She took note of fights between the parties.   She cared for their daughter on weekends that plaintiff worked, and she saw defendant was either “hyper” or asleep.   In 2010 she observed him at times slurring his speech, stumbling as he walked and sleeping “heavily.”

Ms. Nacca reported that she referred plaintiff to her divorce lawyer.   After doing so, she received a phone call from defendant who called her names and blamed her for the impending divorce.   There were voicemails she identified as being from defendant filled with loud, vile, uncouth accusations.   On January 31, 2010 defendant telephoned Ms. Nacca and threatened to shoot her and her daughter.   She had him arrested.   She sought and received a Protective Order.

CONCLUSIONS AND APPLICABLE LAW

The court in this case must determine issues of child custody and support, alimony, assignment of property, bills and debts and the award of attorneys fees.   The court has reviewed and applied CGS Sections 46b–56, 56c, 62, 81, 82 & 84 to reach its decision.

Having done so, the court finds defendant's testimony largely incredible and defendant mostly at fault for the breakdown of this marriage.   His drug abuse is a terrible affliction, but the consequences of his addiction—manic, unpredictable behavior, lack of ambition, dissipation of assets—must not fall on his wife and children.   Plaintiff worked more and earned more than defendant during the marriage.   Her uncle's annual gifts allowed the couple to enjoy some luxuries and acquire assets like the Mercedes automobile and the Mellon stock.   The court finds that she is entitled to a greater share of the assets of the marriage, and fashions its orders accordingly.

ORDERS

Regarding the children

1. Plaintiff shall have sole custody and primary residence of the children.   The court enters no access orders for defendant with the children until he provides to its satisfaction at least six clean drugs tests from a qualified provider over a continuous period of six months.   At least one of these tests shall be a hair follicle test.   Once this condition precedent is fulfilled, the court shall consider the conditions under which defendant may reunify with his children.

2. Parties shall provide medical and dental insurance as available through their private employment or other group plan if available at reasonable cost which is defined to be no more than 7.5% of their net weekly pay as defined by CGS Section 46b–84.

3. The court credits the Child Support Guidelines Worksheet prepared by defendant's attorney as to his earnings.   Based on this and its earlier findings, the court determines defendant's earning capacity to be $11,000.00 gross per year.  Weinstein v. Weinstein, 280 Conn. 764, 911 A.2d 1077 (2007).   Using plaintiff's credible earnings figure of $313.00 per week, the court finds the presumptive amount of child support due from defendant to plaintiff to be $75.00 weekly, and it is so ordered.   The court does not order a wage-withholding because defendant is self-employed.   However, the court will secure defendant's payments of child support pursuant to CGS Section 46b–84 in a subsequent order.

4. The parties shall share the unreimbursed health-related expenses of the minor children, the costs of their extra-curricular activities and any work-related care expenses 75% to the plaintiff and 25% to the defendant in accordance with the Guidelines and the worksheet prepared by defendant's attorney.

5. The court retains jurisdiction over the children's post-secondary education expenses pursuant to CGS Section 46b–56c.

6. Plaintiff shall claim both children for federal and state income tax purposes until such time as defendant earns gross income of $25,000.00 per year.   At that time, he shall claim the parties' daughter, and plaintiff shall claim their son.   When only one child remains to claim, plaintiff shall claim in even-numbered years;  defendant in odd.   However, in order to claim at any time, defendant must be in substantial compliance with all aspects of his child support obligation by December 31st each year.

7. Plaintiff shall maintain her current life insurance policy as listed on her most recent Financial Affidavit or its equivalent and name the children as her beneficiaries at least until the youngest reaches age 23.

8. Defendant shall purchase and maintain a life insurance policy in the face amount of at least $200,000.00 naming the children as his beneficiaries at least until the youngest reaches age 23.

Regarding alimony

1. Neither party shall pay alimony to the other.

Regarding bills and debts

1. Plaintiff shall be solely responsible for the payment of the Discover, Kohl's and Chase Visa accounts listed on her most recent Financial Affidavit.   She shall hold defendant harmless on these bills and debts.

2. Defendant shall be solely responsible for the payment of the Discover and Belden Jewelers accounts listed on his most recent Financial Affidavit.   He shall hold Plaintiff harmless on these bills and debts.

3. Each party shall be solely responsible for and pay their own attorneys fees.

Regarding assets and possessions

1. Plaintiff shall retain the 2002 Mercedes Benz. She shall be solely responsible for all expenses, taxes, insurance, etc. related to this vehicle and hold defendant harmless thereon.

2. Plaintiff shall retain her 401K retirement account as listed on her most recent Financial Affidavit.

3. Plaintiff is awarded the parties' jointly-held Mellon stock.   Defendant shall take all necessary steps to transfer his interest to plaintiff within thirty days of the date of this decision.

4. Plaintiff shall retain her New Alliance checking account and her Comtrust FCU savings account as listed on her most recent Financial Affidavit.

5. Plaintiff is awarded $5,693.60 as her one-half share of the marital home sale proceeds.

6. Plaintiff is awarded $4,993.18 from the $13,993.18 escrow of the parties' home owners' insurance proceeds.

7. Plaintiff shall retain without further claim of defendant all personal property currently in her possession except as noted, below.

8. Defendant shall retain the 1995 Ford Truck.   He shall be solely responsible for all expenses, taxes, insurance, etc. related to this vehicle and hold plaintiff harmless thereon.

9. Defendant shall retain all lawn maintenance and snow removal equipment currently in the possession of either party.   If any such equipment remains in the possession of plaintiff, it shall be made available for defendant to pick up within thirty days of the date of this decision.

10. Defendant shall retain without further claim of plaintiff all personal property currently in his possession.

11. Defendant shall retain any remaining retirement assets he currently has.   The court finds from the testimony that these assets once totaled around $14,000.00 but that defendant invaded these funds for his sole use during the marriage and the parties' separation.

12. Defendant is awarded $5,693.60 as his one-half share of the marital home sale proceeds.¹

13. Defendant is awarded $9,000.00 from the $13,993.18 escrow of the parties' home owners' insurance proceeds.

Additional findings and orders.

1. The court finds that the defendant is sporadically self-employed;  that he has failed to pay his child support obligation in the past ² and that he once had to be brought before the court by means of a capias.   It is necessary under these circumstances to secure defendant's child support obligation.   CGS Section 46b–84.   Defendant shall prepay to plaintiff one year of his child support obligation, currently $3,900.00.   He shall pay an additional $600.00 to plaintiff as an advance against the children's health-related, day-care and/or extra-curricular activities.   These monies shall be withheld from the home owners' insurance proceeds previously awarded to him.   Plaintiff shall place these funds in a bank account from which she may draw the child support as necessary and such other funds as necessary to pay defendant's portion of his children's health-related, daycare and/or extracurricular activities.   She shall prepare and share with defendant an accounting of all such expenses with verifications at least once a calendar year to determine if defendant owes more or is entitled to a credit going forward.

2. The court purposely takes no action as defendant requested regarding a People's Bank withdrawal allegedly made by plaintiff in the amount of $5,170.00.   The court finds that even if plaintiff made such a withdrawal, she applied these funds both to the support of the children and the parties' household expenses.   Also, these monies compensate plaintiff for the marital household cleanup and repair expenses she incurred alone prior to its sale.   For these same reasons, the court takes no action as requested by defendant requiring plaintiff to re-file her 2010 tax returns.

Plaintiff's Motion for Contempt

The parties entered into an Agreement that included a temporary child support order of $100.00 per week beginning Friday, February 25, 2011.   The court, Adelman, J., approved the Agreement on February 23, 2011.   Defendant paid the child support through the end of the year, but according to the uncontroverted testimony of plaintiff, he paid nothing in 2012.   Defendant owes fifteen weeks of child support to April 13, 2012, a total of $1,500.00.   His most recent Financial Affidavit shows that he receives $200.00 monthly from a state source and that he gives all of these funds to his mother for food.

The court finds that he was fully aware of the court's child support order because he paid this obligation in full prior to 2012.   He had the means to pay because of his yard care business and state benefit, but he chose not to do so.   This is a willful violation of the court's order.   For these reasons he is found in contempt.   Defendant, through his counsel, shall pay plaintiff $1,500.00 out of the escrow funds previously awarded to him by the court.

Court's sanction

The court attempted to curb defendant's inappropriate behavior in the courtroom by assessing a monetary sanction of $25.00 after a number of verbal warnings went unheeded.   Defendant shall designate a charity to his counsel within thirty days of this decision.   Counsel shall pay $25.00 to that charity out of the funds she currently holds on his behalf.   If he fails to identify a charity within the specified time period, then she may choose the charity in her sole discretion.

SO ORDERED.

BY THE COURT,

Carbonneau, J.

FOOTNOTES

FN1. The court is aware that these monies are being held by defendant's attorney and that he has received all but $1,631.57..  FN1. The court is aware that these monies are being held by defendant's attorney and that he has received all but $1,631.57.

FN2. See the court's ruling on Plaintiff's Motion for contempt, below..  FN2. See the court's ruling on Plaintiff's Motion for contempt, below.

Carbonneau, John L., J.