Karen Marino v. David Marino (2013)

MEMORANDUM OF DECISION AS TO POSTJUDGMENT MOTION TO MODIFY # 227

Procedural History

The parties were divorced in July of 2009.   At the time of the dissolution trial the defendant husband was incarcerated.¹  The court, Markle, J., in part found that the defendant's lack of knowledge regarding the present finances of his KEMCO business non-credible.   The court imputed an earning capacity of $96,650.00 to the defendant and ordered that he pay the plaintiff $950/week in alimony for a period of six years and child support in the amount of $502/week.²

The defendant filed a postjudgment motion for modification on July 8, 2010.   (Motion # 211.)   On October 1, 2010, the court, Gould, J., granted the motion to modify as to defendant's parenting access and found an arrearage owed by the defendant to the plaintiff in the amount of $97,910.00.³  The court denied the plaintiff's motion for contempt (motion # 212) finding that the defendant had no present ability to pay but ordered that the defendant make no less than five employment searches per week with a report back date of October 29, 2010.

At the October 29, 2010 report back hearing, parenting access orders were again modified and “the court's orders pertaining to motion # 212 on 10/1/10 shall remain in effect.   Report back shall be 1/12/2011 for all matters.”   The court file reflects that on February 9, 2011 the court, Gould, J. ordered:  “(1) The parties reported back to court, visitation is going well.  (2) All existing orders remain effect.”

In March of 2011 the appellate court, in a per curiam decision, affirmed Judge Markle's denial of the defendant's request for a continuance of the dissolution trial and the trial court's financial orders.   See Marino v. Marino, 126 Conn App. 906 (2011).

Although at least one subsequent motion to modify was filed by the defendant, no further motions to modify were actively pursued by the defendant until motion # 227.   This court commenced an evidentiary hearing on motion # 227 on May 2, 2013, continued the hearing on July 18th ⁴ and then again continued the case to conclusion on August 2, 2013.   Both parties represented themselves throughout the hearing.

Factual Findings

The crux of motion # 227 is whether the defendant is volitionally and intentionally attempting to deprive the plaintiff of the alimony and child support ordered by Judge Markle in 2009;  an order not modified by Judge Gould in 2010.   Further factual findings are necessary to properly dispose of motion # 227.

During the hearing on motion # 227, the plaintiff credibly testified that the parties' prior business, KEMCO, closed two weeks after the dissolution trial.⁵  Judge Markle had ordered that the KEMCO accounts receivable be turned over to the plaintiff, so that said receivables could be applied against the tax liens on the marital home.   Although the plaintiff may have received $7,000 from some source, a significant amount of the account money was used by the defendant to finance his appeal to the appellate court.   At the defendant's direction, the defendant's father, exercising a power of attorney, either had the KEMCO business closed and/or had the active KEMCO client accounts handed over to the defendant's friend Rossi Grey which Grey continued to service under a different company name.   To date, the defendant has never substantively pursued having the KEMCO accounts returned to him.⁶

Moreover, the defendant's family owns Aftermarket Specialty Co, a company that has existed since 1965 and presently employs several of the defendant's siblings.  (Exhibit 1.) Up until approximately 2011 or 2012 the defendant's father had headed up the company but the company is now run by defendant's brother, Fred.⁷ Apparently, after a year of abiding by Judge Gould's order as to five job searches a week, the family business hired the defendant at a salary of $650.00/wk. The defendant's brother, Fred, supplements the defendant's monthly income stream;  the defendant receives on average $200/wk from Fred, allegedly from Frank's personal income.   It is noteworthy that when the court at the May 2nd hearing indicated that it would be worthwhile to have the defendant's brother come in and testify as to the family company's employment of the defendant and Fred's personal support of the defendant, the defendant appeared at the July 18th hearing and reported that he had been fired from the family business and the defendant had no witnesses or documents to present to the court.

The defendant claims and the plaintiff concedes he suffered a major stroke in April of 2010.   Over three days of hearings the court observed the defendant's physical, emotional and behavioral demeanor.   He reports that his only medications are a baby aspirin and an anti-cholesterol drug, although he claim to suffer from body shakes, difficulty with speech and “stuff like that.” ⁸  Throughout his testimony, the defendant's speech was clear, his gait was steady and he had absolutely no difficulty articulating his thoughts and effectively representing himself as a self-represented litigant.   The court concludes the defendant suffers no discernable substantive physical or cognitive deficits from his 2010 stroke.⁹

By the July 18th hearing, the defendant had found new employment with the Apple Automotive LLC as a car salesman.¹⁰  In a July 18th sworn financial affidavit, the defendant reports a gross weekly income of $500/wk (net $420/wk) and $200/wk in ‘family support.’  (The defendant's May 2nd financial affidavit reflected a gross weekly income from the Aftermarket Specialty Company of $650/wk (net of approximately $506 after the defendant's wage withholding support obligation is added back into his weekly net of $160.52.)

Finally, the plaintiff credibly testified that the defendant, in spite of the modest income he has generated since 2010, has on occasion, presented the minor child(ren) with gifts, such as a Tiffany bracelet, a computer and Ipad. Moreover the plaintiff credibly testified that the defendant walks around with cash, although his financial affidavits reflect his weekly expenses consume his weekly income.

The defendant perceives himself as a victim of the divorce and as an individual who physically, emotionally and mentally is incapable of attaining the income level imputed by the court at the July 2009 divorce trial.   This court does not concur in the defendant's assessment of his earning potential.   Moreover, this court credits the plaintiff's testimony that the defendant has represented to her that there is no sense to him working because of the amount of money he owes as a result of the divorce judgment.   It is clear that the defendant's family, through the family owned business and/or Fred's personal finances, provides the defendant with whatever money he expresses a need for.   Post-dissolution, the defendant has elected to embrace an extremely modest lifestyle.   Exactly how much his family and the family business supplements the defendant is impossible to discern.   What is clear is that the defendant has chosen to live a life that intentionally precludes the plaintiff and the minor children from receiving the financial support ordered at the time of the divorce.

Four years has elapsed since the present alimony and child support orders entered.   The defendant has never come close to complying with the orders and he has no intention of ever returning to pre-divorce income generating levels—at least as long as he is required to pay $950/wk in alimony and $500/wk in child support.   The court's modification of the existing orders is not meant to reward or condone the defendant's post-dissolution judgment and behavior but perhaps the modification will spur him to achieve some level of job stability and potentially a higher income.¹¹

Order

Accordingly, the motion to modify is hereby granted.   The defendant shall pay the plaintiff $500.00/wk in alimony ¹² and the presumptive child support amount of $135.00/wk. The defendant shall be responsible for 28% of any un-reimbursed health care expenses for the minor children.   Said modification is effective August 6, 2013.   If and when the defendant's income increases by 15% he shall, within seven days of such increase, notify the plaintiff in writing of said change in circumstance.

Bernadette Conway, Judge

FOOTNOTES

FN1. Judge Markle's written decision of July 21, 2009, reflects the defendant received a six-month prison sentence for violations of protective orders..  FN1. Judge Markle's written decision of July 21, 2009, reflects the defendant received a six-month prison sentence for violations of protective orders.

FN2. On page 4 of Judge Markle's decision, she writes:  “․ (T)here is ample basis to find that there is an ongoing business being conducted by KEMCO company and that the defendant as (sic) an annual earning capacity of $96,650.00.”.  FN2. On page 4 of Judge Markle's decision, she writes:  “․ (T)here is ample basis to find that there is an ongoing business being conducted by KEMCO company and that the defendant as (sic) an annual earning capacity of $96,650.00.”

FN3. The plaintiff alleges and the defendant does not dispute that as of December of 2012 the outstanding arrearage owed by the defendant to the plaintiff is approximately $242,000.00..  FN3. The plaintiff alleges and the defendant does not dispute that as of December of 2012 the outstanding arrearage owed by the defendant to the plaintiff is approximately $242,000.00.

FN4. At the conclusion of the May 2nd hearing the court continued the case until May 23rd.   The defendant requested and was granted a continuance (motion # 231) to June 12th.   The plaintiff then requested and was granted a continuance (motion # 232) to July 18th..  FN4. At the conclusion of the May 2nd hearing the court continued the case until May 23rd.   The defendant requested and was granted a continuance (motion # 231) to June 12th.   The plaintiff then requested and was granted a continuance (motion # 232) to July 18th.

FN5. The plaintiff credibly testified that KEMCO company had been the defendant's ‘baby’ for ten years..  FN5. The plaintiff credibly testified that KEMCO company had been the defendant's ‘baby’ for ten years.

FN6. The plaintiff credibly testified that the defendant represented to her that in late 2011 or early 2012 he was in contact with Rossi Grey about having the KEMCO accounts returned to him.   The defendant claims he never spoke to Rossi Grey but went directly to the clients.   The defendant testified he was unsuccessful in regaining the accounts because the clients preferred Rossi Grey over him.The defendant's non-credible claims concerning his efforts to regain the KEMCO accounts only reinforces this court's conclusion that the defendant's clear intent is to earn nothing more than nominal wages to circumvent the operative support orders..  FN6. The plaintiff credibly testified that the defendant represented to her that in late 2011 or early 2012 he was in contact with Rossi Grey about having the KEMCO accounts returned to him.   The defendant claims he never spoke to Rossi Grey but went directly to the clients.   The defendant testified he was unsuccessful in regaining the accounts because the clients preferred Rossi Grey over him.The defendant's non-credible claims concerning his efforts to regain the KEMCO accounts only reinforces this court's conclusion that the defendant's clear intent is to earn nothing more than nominal wages to circumvent the operative support orders.

FN7. Exhibit 1 reflects Aftermarket Specialty offers car dealers various services such as cleaning and prepping vehicles for sale..  FN7. Exhibit 1 reflects Aftermarket Specialty offers car dealers various services such as cleaning and prepping vehicles for sale.

FN8. The defendant's lack of health insurance and his alleged lack of access to healthcare is unfortunate but does not substantively impact this court's findings.   As with many of the defendant's claims regarding his motion to modify, the defendant relied solely on his verbal testimony.   The court cannot over emphasize the lack of credibility the court attached to the defendant's testimony regarding motion # 227..  FN8. The defendant's lack of health insurance and his alleged lack of access to healthcare is unfortunate but does not substantively impact this court's findings.   As with many of the defendant's claims regarding his motion to modify, the defendant relied solely on his verbal testimony.   The court cannot over emphasize the lack of credibility the court attached to the defendant's testimony regarding motion # 227.

FN9. The defendant also asserts he was psychiatrically hospitalized.   Because his claimed psychiatric hospitalization was in 2008 it predates the 2009 and 2010 orders and is therefore of no moment in this present motion to modify.At the July 18th hearing the defendant reported he had been admitted to a thirty-day rehabilitation facility since the commencement of hearing in May. The defendant presented no other substantive evidence regarding his alleged rehabilitation admission and could not even supply a coherent month for said hospitalization.   Assuming, without deciding, that such a rehabilitation hospitalization occurred it does not alter the court's analysis or orders..  FN9. The defendant also asserts he was psychiatrically hospitalized.   Because his claimed psychiatric hospitalization was in 2008 it predates the 2009 and 2010 orders and is therefore of no moment in this present motion to modify.At the July 18th hearing the defendant reported he had been admitted to a thirty-day rehabilitation facility since the commencement of hearing in May. The defendant presented no other substantive evidence regarding his alleged rehabilitation admission and could not even supply a coherent month for said hospitalization.   Assuming, without deciding, that such a rehabilitation hospitalization occurred it does not alter the court's analysis or orders.

FN10. At the Aug. 2nd hearing the defendant produced a one-week pay stub, reflecting a gross wage of $350.00.  (Exhibit A.) The defendant testified that exhibit A reflected three weeks of pay.   Exhibit A reflects a year to date gross of $1,745.50.   When the court pointed out that $1,745.50 divided by three equals $581.83 the defendant then testified that his pay is based on commission;  he receives 15% of the gross profit of any vehicle sold by him..  FN10. At the Aug. 2nd hearing the defendant produced a one-week pay stub, reflecting a gross wage of $350.00.  (Exhibit A.) The defendant testified that exhibit A reflected three weeks of pay.   Exhibit A reflects a year to date gross of $1,745.50.   When the court pointed out that $1,745.50 divided by three equals $581.83 the defendant then testified that his pay is based on commission;  he receives 15% of the gross profit of any vehicle sold by him.

FN11. The defendant has no specific monetary figure to offer the court as to what constitutes a reasonable support order.   The plaintiff requests that it not dip below the $345.00..  FN11. The defendant has no specific monetary figure to offer the court as to what constitutes a reasonable support order.   The plaintiff requests that it not dip below the $345.00.

FN12. While the court accepts the defendant's present income for purposes of child support moving forward, alimony of $500/wk reflects the court's rejection of the defendant's uncorroborated claims regarding his physical and mental health and his wilful desire to deprive the plaintiff of the court ordered support..  FN12. While the court accepts the defendant's present income for purposes of child support moving forward, alimony of $500/wk reflects the court's rejection of the defendant's uncorroborated claims regarding his physical and mental health and his wilful desire to deprive the plaintiff of the court ordered support.

Conway, Bernadette, J.