Rosa Solis v. Federico Hernandez (2012)

MEMORANDUM OF DECISION

This dissolution of marriage complaint was filed by Rosa Solis (the Plaintiff) on October 20, 2011.   The complaint and proposed orders seek;  dissolution of the marriage on the grounds of irretrievable breakdown;  alimony;  child support;  the Marital Residence (29 Meadow Street, Wallingford, CT);  a fair distribution of property and debts;  and a reservation of jurisdiction on any secondary education orders for the minor children.

Federico Hernandez (the Defendant), filed a crosscomplaint, an amended crosscomplaint and proposed orders.   The defendant is seeking;  dissolution of the marriage on the grounds of irretrievable breakdown;  a fair share of the Marital Residence;  no alimony award;  a reservation of jurisdiction on any secondary education orders for the minor children;  and a fair distribution of personal property and debts.

The State of Connecticut filed proposed orders regarding the medical insurance for the minor children and reimbursement for out of pocket medical bills.

A two-day trial was held on July 18 and 19.   Four witnesses testified;  the Plaintiff, the Defendant and two brothers-in-law of the Defendant, Javier Aquirre and Roberto Alvarado.   There were eleven documents accepted as full exhibits at the trial (7 by Plaintiff, 4 by Defendant).   Prior to hearing any evidence, the parties submitted and the court accepted an agreement regarding custody and visitation.   The Defendant is not fluid in English and was assisted through all parts of the trial by State Certified Spanish Interpreter Lawrence Corcoran.

From the witness's credible testimony and all the full exhibits introduced at the trial, the court makes the following factual findings:

The parties were intermarried on November 27, 1999 in Wallingford, Connecticut.   The Plaintiff had resided within the state of CT for at least one year prior to filing this divorce complaint.   Two children were born of this marriage;  Emmanuel Hernandez on June 27, 2001 and Leslie Hernandez on January 24, 2003.   Just after their marriage, the parties purchased a trailer home which cost $10,000.   The funds for such purchase were provided solely by the Defendant.   In 2004, the parties sold the trailer making a profit.   The amount of profit was somewhere between $10,000 and $17,000 (testimony differed).   In any event such profit was later used as a down payment toward the purchase of the Marital Home at 29 Meadow Street in Wallingford CT. The Meadow Street home has a fair market value of $188,000 and is encumbered by a mortgage of $164,000.   The monthly mortgage payment on the property is $1,500.   The Marital Home is and has always been deeded in the name of the Plaintiff only and the mortgage is in the names of the Plaintiff and her father.   In November of 2007, the Plaintiff remortgaged the property in order to lower the monthly payment.   Because the Defendant was unable to obtain credit, as he did not have a Social Security Number, the Plaintiff's father cosigned the new mortgage which lowered the monthly payment from $1,700 per month to the current $1,500 per month.   The old mortgage was in the name of the Plaintiff only;  the new mortgage is in the names of the Plaintiff and her father.   No profit was made from this refinance and it appears that the Plaintiff did this without telling her husband about it until long after the loan closed.

The Defendant renovated the entire Marital Home during the years that he lived there.   He purchased a substantial amount of the materials and did almost all of the work.   These renovations not only significantly improved the Marital Home but the Parties were able to create a lower level apartment which is leased out and brings in approximately $900 per month of rental income.

The Plaintiff is 39 years old.   She came to the United States in 1999 from Mexico.   Sometime thereafter, she became a U.S. citizen and received her high school diploma.   She is fluent in the English language.   She has worked at the Leeper Co. (phonetic), at Choate School in the dining hall, and is currently employed at the YMCA in a position she described as “teacher.”   All of her positions have been “part time.”   She earns $300 per week from her employment and $210 per week from rental income for the lower level apartment in the Marital Home. The Plaintiff also testified that her father gives her approximately $300 to $500 per month as needed.   The Plaintiff is in good health.   She has recently been diagnosed with diabetes but to date has shown no symptoms or limitations from that condition.

Aside from her personal checking account, the Plaintiff has a Bank of America savings account with a current balance of $5,000.   That $5,000 is money that the Defendant father gave to the Plaintiff to save for the children's future use.   The Defendant was unable to have any accounts in his name because of his lack of SSN. The account recently had about $12,000, but the Plaintiff has dipped into that fund for other purposes.   The Plaintiff also has a retirement plan and a deferred compensation plan through her YMCA employment.   Those plans together have a current value of $11,062.09.   The listed family vehicles, a 2003 Nissan Pathfinder and a 2006 Chevrolet Silverado are both owned free and clear in the name of the Plaintiff.   The Plaintiff's total cash value of assets is $41,000.

The Defendant is 39 years old.   He came to the United States from Mexico in 1992.   He does not speak English and he is not a U.S. citizen.   He is in good health.   The Defendant has lived with his brother-in-law for the past eleven months and pays $100 per week rent.   The Defendant is skilled in carpentry and handyman type work.   He has worked at Bonito Manufacturing as a cabinet maker, Aculade Furniture, and from 2007 to the present, he has been employed by Archie Moore's as a handyman.   He currently earns about $410 per week.   The total cash value of his assets is $200.

As a result of an unhappy marriage, each of the parties has once been summoned to court as a result of a “family violence” arrest and each has had some type of protective order against them as it relates to the other party.   These arrests were based mostly on verbal differences and more readily represent each of the party's discontent with the other rather than a serious threat of physical harm.   These arrests played no role in this Court's decision.   It should also be noted here that the Defendant's status as a non-citizen played no part in the court's decision except to the extent that the Plaintiff used such status to control the marital funds and belittle the Defendant.

On the day of the trial, the parties had been living apart for about eleven months.   The parties met through the Plaintiff's father and were later married.   The Plaintiff was rightfully proud that she spoke English, graduated from high school, and was a U.S. citizen.   However she often used those accomplishments to control the finances to the detriment of her husband and to belittle the Defendant.

The Defendant resented the way his wife treated him.   He testified that he was unhappy soon after the marriage.   She often belittled him in front of others using derogatory terms such as “trash” and “animal.”   The extent of her unreasonable control of the marital assets is demonstrated by the fact that when the Defendant left the Marital Home she neither let the Defendant take the pickup truck which he customarily used nor many of his tools that he used for work.   To this day many of the Defendant's tools remain in the custody of the Plaintiff.   All of the bank accounts are in the name of the Plaintiff.   The Defendant had given the Plaintiff $12,000 over some years to put in an account which was earmarked for the children when they became older.   The Defendant had no access to said account as it is in the name of the Plaintiff only.   There is now only $5,000 in that account.   It is listed on the Plaintiff's financial affidavit as money for the children.

The Defendant also credibly claims that he did not know of the remortgage in 2007 of the Marital Home until recently.   There are some strange circumstances surrounding that refinance which support his position.   As a matter of fact, both parties presented some credibility problems stemming from their testimony, lack of explanation and exhibits admitted into evidence at the trial.

Although both parties bear some fault for the breakdown of the marriage, this Court finds the Plaintiff to be the substantial cause of the breakdown.   There is no prospect that this marriage can be saved.

ORDERS

The Court finds that it has jurisdiction over this dissolution of marriage.   The complaint was properly served, the matter has been pending for more than ninety days and both parties had continuously resided in Connecticut for more than one year prior to the filing of this complaint.

The Court, in fashioning its orders, has carefully considered the credible testimony of all of the witness as well as all of the full exhibits introduced at trial

The Court used Plaintiff's exhibit # 2 and Defendant's exhibit B (the parties' respective financial affidavits) in its financial considerations.

The Court in entering its orders has considered the provisions of Connecticut General Statutes Secs. 46b–40, 46b–56, 46b–62, 46b–81, 46b–82 and all other relevant statutes.

DISSOLUTION

The Court dissolves this marriage on the grounds that it has irretrievably broken down without chance for reconciliation.

CUSTODY AND VISITATION

The parties submitted an agreement on custody and visitation.   That agreement is a 2–page document entitled Stipulated Parenting Plan and dated July 18, 2012.   Subsequently, the parties filed a one-page addendum to such Stipulated Parenting Plan in order to clarify some language in the original document.   That document was entitled Agreement (addendum to parenting plan) and dated July 31, 2012.   These two agreements are hereby made an order of the Court and incorporated by reference into the Court's Judgment.

Any substantial changes to such agreement and order must be in writing.

CHILD SUPPORT

Beginning August 10, 2012 the Defendant shall pay to the Plaintiff child support in the amount of $138 per week.   Said amount will cover both minor children.   Child support will end for each child when that child either graduates from high school or reaches the age of 19 years, whichever comes first.

Unreimbursed medical expenses and qualified day care costs shall be paid 62% by the Plaintiff and 38% by the Defendant.

All amounts and percentages are in strict compliance with the State of Connecticut Child Support Guidelines.

The Plaintiff shall claim both minor children as dependents on both her State and Federal Income Tax Returns.   If the Defendant should become employed and earn more than $30,000 per year, then the parties may each claim one minor child on his/her State and Federal Income Tax Returns.

Agreed to extra-curricular activities expenses shall be shared equally by the parties.

EDUCATIONAL SUPPORT

The Court finds that if the family had remained intact, the parties would more likely than not have provided post-high school support for their two minor children.   The Court will retain jurisdiction to enter an Educational Support Order in accordance with Connecticut General Statutes sec. 46b–56c.

HEALTH INSURANCE

Each party shall be responsible to maintain his/her own health insurance.   Currently, both minor children are enrolled in the HUSKY insurance plan.   The Plaintiff shall be responsible for maintaining the children in that plan, unless either party is able to enroll the children in a health care program as provided through their employment at a reasonable cost.

ALIMONY

Beginning August 10, 2012, the Defendant shall pay alimony to the Plaintiff in the amount of $1.00 (one dollar) per year for a period of seven years.   Said alimony shall be non-modifiable as to term.   Alimony obligation shall terminate on sooner of the first occurrence of one of the following events;

1) death of either party

2) remarriage by the Plaintiff

3) cohabitation by the Plaintiff as defined in CGS sec. 46b–86(b).

REAL ESTATE

The Plaintiff shall retain the Marital Residence on 29 Meadow Street in Wallingford, CT in her name only and shall retain all rental income.   She shall be responsible for all mortgage, taxes and expenses associated with such ownership and shall hold the Defendant harmless for any debt or liability associated with the ownership of said property.   She shall pay to the Defendant $12,000 which is 50% of the current equity in said residence.   The $12,000.00 payment must be made by August 1, 2013 unless the Plaintiff decides to sell such residence by placing it on the market with a licensed realtor before August 1, 2013.   If the Plaintiff chooses to sell the Marital Residence by placing it on the market before August 1, 2013 then no payment will be due to the Defendant and the parties will evenly split the profit.   If there is a loss from the sale of the Marital Residence, then the Plaintiff shall bear the burden of such loss.   If the $12,000 is paid in accordance with this order than the Defendant shall have no further claim to the Marital Residence.

The Court will retain jurisdiction over this provision to be sure that its purpose and intent is carried out.

RETIREMENT FUND

The Plaintiff has a YMCA retirement account and deferred compensation plan which together have a value of $11,062.79.   The Plaintiff shall retain her interest in these accounts.

BANK ACCOUNTS

The Plaintiff has two Bank of America accounts in her name only.   One is checking account with a variable balance of $1,000.   The Plaintiff shall retain her interest in said checking account.

The second account is a savings account in the Plaintiff's name only with a current balance of $5,000.   This account had been earmarked for the benefit of the minor children.   These funds may not be used for any purpose except agreed to expenses for the benefit of the minor children.   The Plaintiff shall submit in writing to the Defendant any withdrawal that she plans to make from this account.   The Defendant shall within 5 days agree or disagree with such withdrawal.   If the Defendant agrees, then the Plaintiff shall provide proof to him that said funds were used for their intended purpose.   If he disagrees, they shall submit the request to a mutually agreed on arbitrator whose decision shall be in writing and binding on the parties.

The Court will retain jurisdiction over this provision to ensure that its purpose and intent is carried out.

PERSONAL PROPERTY

The Defendant shall be allowed to enter the Marital Residence one time with a mutually agreed on third party on or before September 1, 2012 in order to retrieve any mutually agreed to personal property located at 29 Meadow Street.   Any personal item(s) that the parties cannot agree upon dividing, shall be kept at the Marital Residence and the owner of such disputed item(s) shall be determined by a mutually agreed upon arbitrator in a reasonable amount of time.

The Court shall retain jurisdiction over this provision to ensure that its intent and purpose is carried out.

DEBT

Each party shall be liable for their respective debts as listed on Plaintiff's exhibit # 2 and Defendant's exhibit A.

AUTOMOBILES

The parties shall retain their respective automobiles as listed on their financial affidavits or the vehicle(s) which they currently possess.

Date:  August 3, 2012

Honorable Phillip A. Scarpellino

Scarpellino, Philip A., J.