Rene Montalvo v. Frances T. Montalvo (2013)

MEMORANDUM OF DECISION

This is an action commenced by the plaintiff husband by complaint dated January 5, 2012 and made returnable to this court on February 7, 2012 seeking a dissolution of marriage and other court orders.   The defendant wife appeared pro se.

On May 23, 2013, the matter was tried to the court.   The plaintiff was represented by counsel and was present for the trial.   The defendant was present for the trial.   The Assistant Attorney General filed an appearance on behalf of the State of Connecticut but did not appear at the trial.   Testimony was received from the plaintiff and the defendant.   The plaintiff introduced numerous exhibits.

From the testimony and evidence produced at the trial and after assessing the credibility of the witnesses, the court finds the following facts to have been proven.

The parties were intermarried on August 12, 2006 in Willimantic, Connecticut.   The plaintiff and the defendant have two children issue of the marriage, Rene, who is five years old and Rae'Lyn who is three years old.   There have been no other children born to the defendant wife since the date of the marriage.   The State of Connecticut has provided medical insurance benefits and other benefits on behalf of the children and the parties.   The plaintiff and the defendant have resided in this state for more than one year immediately prior to the date of the complaint.   The court finds that it has jurisdiction over the parties and the marriage.

The plaintiff husband is 30 years old.   He is in good health and has completed approximately two years of college but has not received a degree.   He is currently self employed as a tattoo artist and grosses $450.00 a week according to his financial affidavit.   The father testified that the mother has not consistently exercised her visitation and participated in her children's activities on a regular basis.   He does not believe that the mother makes appropriate decisions in regard to the parties' children.

The plaintiff also testified that he has previously filed a bankruptcy petition.

The defendant wife is 29 years old.   She has had a chronic medical condition that is currently under control but is otherwise in good health.   She has attended some college.   She is currently employed as a bartender, grosses $130.00 and nets $120.00 per week according to her financial affidavit and testimony.   In a hearing before the Court, Boland, J., on April 13, 2013 she was found to have an earning capacity of $330.00 per week which this court also finds.

The mother testified that while she desires joint custody, she does not dispute that the children should live with the father in that at the present time it is better for them and that she is putting their best interest first.   She is currently living in her father's basement but is seeking a new residence.   The mother also testified that the father's infidelity was the cause of the breakdown of the marriage, an allegation that the father denied in his testimony.

Family Relations conducted a comprehensive evaluation of the parties and the children and their report was entered as an exhibit by the Plaintiff.   The evaluation was completed on April 4, 2013.   It is reported by Family Relations that during this dissolution the father has consistently met the children's needs both physically and emotionally and has been very involved in their medical needs, educational needs, schooling needs as well as enrolling them in activities.   He has provided them with appropriate housing.   It is reported that the mother has had minimal participation in the divorce, evaluation process, the Family Assessment with DCF and in her children's lives.   It is further reported that the mother has shown an underdeveloped interest in the proactive parenting of her children.   The report concluded in part that the sole custody of the children be awarded to the plaintiff father.

The parties were married in August of 2006 and separated in November of 2011.   Both the plaintiff and the defendant testified that the marriage had significant problems for a substantial period of time.   There are no joint assets of the parties and both parties have limited income.   Neither party has any significant financial assets.   An award of alimony is not appropriate in this case.   The evidence has shown that it is in the best interest of the children be awarded to the father.

After taking into consideration the statutory criteria set forth in the Connecticut General Statutes as well as the applicable case law and applying the same to the evidence, the court enters the following orders.

1. A decree is entered dissolving the marriage of the parties on the grounds of an irretrievable breakdown.

2. The plaintiff shall have sole custody of the minor children of this marriage, and the primary residence of said children.   The mother shall have visitation with the children as follows:  From Friday, 10:30 a.m. until 5:00 p.m. and Saturdays from 10:15 a.m. until 4:00 p.m. When any child attends school in the fall, the visitation of the mother on Friday shall commence at the conclusion of the school day until 6:00 p.m. The exchange of said children shall take place at the Willimantic Cumberland Farms.   In addition, the defendant mother will pick up the children from Rae'Lyn's ballet class on Saturdays as long as those are in session.   Nothing herein shall prevent the parties from agreeing upon additional visitation or other exchange locations for the children.   The father shall have access to the children in even years and the mother in odd years on New Year's Day, July 4th and Christmas Day. The mother shall have access in even years and the father in odd years on Easter, Thanksgiving and Christmas Eve. The father shall have access to the children on Father's Day and the mother will have access to the children on Mother's day.   During the holidays, the mother's access will be from 9:00 a.m. until 7:00 p.m.

The mother shall also have daily phone contact with the children at a mutually agreed upon time.

3. The defendant shall make child support payments to the plaintiff for the benefit of the minor children in the amount of $92.00 per week, said sum being substantially in accordance with the Connecticut child support guidelines.   The court finds the defendant to have an earning capacity of $330.00 gross per week which was an amount previously found by the Court, Boland, J., on April 3, 2013 after a hearing.   The obligation of support and maintenance of the child support obligations shall be subject to the provisions of Connecticut General Statute Section 46b–84.   The child support obligation shall be secured by an immediate wage execution and the defendant shall pay said amount directly to the plaintiff until it is actually garnished from her employment compensation.   The plaintiff shall be responsible for 74% of unreimbursed medical expenses and the defendant shall be responsible for 26% of unreimbursed medical expenses pursuant to the Connecticut child support guidelines.   The plaintiff shall be responsible for 80% of work-related child care expenses and the defendant shall be responsible for 20% of work-related child care expenses in accordance with the Connecticut child support guidelines.   The child support orders herein are prospective in nature from the date of this judgment and are not retroactive.

4. The parents shall provide medical/dental insurance for the benefit of the minor children if such is carried by such parent and is available to such parent at a reasonable cost not to exceed 5% of such parent's net income if available through employment or if the parent would not qualify as a low-income obligor under such guidelines and the cost does not exceed 7.5% of such parent's net income.

5. No alimony is awarded to either party.

6. Each party shall retain ownership of any financial accounts in their own name, free and clear of any claims of the other party.

7. Each party shall retain possession of and are entitled to all household goods, furnishings and possessions now under their possession and control, free and clear from any claim by the other.

8. The plaintiff shall be entitled to the tattooing equipment and miscellaneous personal property as listed on his financial affidavit currently in his possession free and clear of any claim of the defendant.

9. Both parties shall share equally the debt due to the Department of Revenue Services as listed in Plaintiff Exhibit 3 in the approximate amount of $956.12 subject to any additional interest or fees added to said debt by the Department of Revenue Services.

10. The plaintiff shall be solely responsible for the debt to the Town of Windham for overdue property taxes as listed in Plaintiff's Exhibit 2 and on his financial affidavit in the approximate amount of $700.00 subject to any additional interest or fees added to said debt by the Town of Windham.

11. Each party shall be solely responsible for any other debt in their own names.

12. The plaintiff has completed the Parental Education Program.   The defendant has not completed the Parental Education Program and is ordered to complete it within ninety days of this Judgment.

13. The court shall have continuing jurisdiction to enter an educational support order pursuant to Connecticut General Statute Section 46b–56c.

14. The defendant's maiden name of Frances T. Figueroa is hereby restored.

Graziani, Judge of the Superior Court

Graziani, Edward C., J.