Ori Kellman v. Sharon Kellman (2013)

MEMORANDUM OF DECISION

The court makes the following findings of fact and conclusions of law.

The parties intermarried on September 21, 2001 in New Haven, CT. The parties have resided continuously in Connecticut for at least twelve months prior to the commencement of the action.   The court has jurisdiction over the dissolution action and all statutory stays have expired.   The parties agree and the court finds that the marriage has broken down irretrievably.   The plaintiff husband commenced this dissolution action on or about May 14, 2012.   Trial commenced and concluded on July 22, 2013.   The plaintiff was self represented and the defendant was represented, pro bono, by a competent and dedicated attorney.

There are three children issue of the marriage:  India, born April 23, 2003, Nevaeh ¹ born April 13, 2004 and Asante born June 2, 2007.²  The plaintiff husband is forty-one years old, enjoys fine health and is a licensed plumber.   The plaintiff has been a member of the Plumber and Pipefitting Union, Local 777, since 2000.   At the time of trial he was attempting to disengage from the union in order to seek nonunion plumbing work;  according to the plaintiff, nonunion plumbing work is more available and abundant.³  The plaintiff husband last engaged in unionized sanctioned plumbing work in 2010, at wages of $37.00/hour with the union also providing health insurance and pension benefits.   Subsequent to 2010 the plaintiff husband engaged in plumbing work at a nonunion work site and both the plaintiff and the employer were fined after the union brought charges.   Since then, the plaintiff has been substantively unemployed and collecting unemployment income at the rate of $537/wk gross.   At the time of the dissolution trial there existed only approximately twenty weeks of remaining unemployment eligibility.   The plaintiff has not filed a state or federal income tax return since 2001 or 2002.   He owes thousands of dollars to the IRS.

The defendant wife is forty-two years old.   After graduating from high school she attended Porter Chester School for one year and received schooling for employment as a legal secretary.   She worked for a temporary agency while raising her two adult children, both of whom attended college.   In 2009 she was diagnosed with breast cancer and underwent a radical mastectomy.   Postoperatively, she underwent chemotherapy and radiation treatment and eventually reconstructive surgery.   Her physical health precluded her from working until earlier this year when she became employed at Goodwill Industries as a van driver.   However, during the pendency of the divorce proceedings, and just shortly after starting her employment with Goodwill Industries, the defendant woke up one morning having developed a massive tumor on her face and neck area.   The defendant sought medical attention only after completing an eighteen-hour workday.   She sustained left sided paralysis of the face/neckline and the tumor is pressing/affecting nerves that impact her jaw, mouth, eye, neck, and speech/voice.   Surgery to biopsy and partially remove the tumor was performed at Yale New Haven Hospital.   The biopsy results reflect the presence of cancer cells, which may or may not be related to the 2009 breast cancer.   Moving forward the defendant requires radiation to shrink the tumor and she will need eye surgery for blood vessel damage from the tumor.   Her health precludes her from working and she has recently filed for social security disability.   Other than $174.62/wk in court ordered child support, the only other source of income the defendant receives is $138.00/wk in food stamps.⁴

The parties' marriage has been fraught with conflict and violence.   There have been periods of physical separation and the parties have maintained separate residences.   From the plaintiff's perspective, the marriage was never a good one.⁵  For years prior to the defendant's breast cancer diagnosis she had maintained a separate residence with the children on Quinnipiac Ave in New Haven.⁶

In approximately 1988, the plaintiff's mother, Irman Kellman, purchased a two-family home located at 130–132 Butler St. in New Haven for $120,000.00.   On or about February 6, 2006, the plaintiff's mother quit claimed the Butler St. home to Paulette Cox and Ivan Cox, the plaintiff's aunt and uncle.  (Defendant's exhibit E.) Irman Kellman died on or about February 18, 2006.   The plaintiff's maternal grandmother continued to reside in the first floor, 132 Butler St. home, after Irman Kellman's death.   On or about April 23, 2008, Paulette and Ivan Cox quit claimed their interest in the Butler Street house to Irman's children:  Ori Kellman (a 1/5 interest), Marcel Kellman (a 2/5 interest), Wayne Kellman (1/5 interest) and Sean Kellman (a 1/5 interest).  (Defendant's exhibit D.) Marcel, Irman's daughter (and the plaintiff's sister), received a 2/5th interest, 1/5th more than her brothers because another brother, Carmen, was imprisoned at the time of the quitclaim.   It may be that Marcel is holding Carmen's 1/5 interest until he is released from prison.   Sean Kellman testified that aside from some nominal lawn work he has never financially contributed to the upkeep of 130–132 Butler Street because he has not lived there since he was a child and he has no money to contribute.

In approximately 2008, Wayne Kellman moved his family into 130 Butler St., the second-floor home.   Eventually 132 Butler St. became vacant when the plaintiff's grandmother moved to Hamden to live with relatives.   In 2009, given the defendant's cancer and financial struggles, the plaintiff invited the defendant and the children to come live at the Butler St. house.   However, the plaintiff failed to inform and/or obtain the consent of Wayne Kellman and when the defendant kicked in the door to gain access to 132 Butler St., the plaintiff's sister-in-law, Wayne's wife, called the police.   Although 130–132 Butler St. is a two-family home that was owned by the plaintiff, Wayne Kellman, Marcel Kellman and Sean Kellman, to date Wayne Kellman, with the exception of the payments reflected in defendant's exhibit A, has assumed virtually sole financial responsibility for 130–132 Butler St.⁷

The plaintiff reports that in or around 2009 there was a restraining order hearing.   At the hearing both parties sought an order allowing each to have exclusive possession of 132 Butler St. Ultimately, a restraining order issued permitting the defendant and the minor children to reside in the Butler St. home and precluded the plaintiff from residing there.   There was an arrest, perhaps in 2010, of the defendant regarding an altercation between him and the plaintiff's now twenty-six-year-old daughter.   In 2011 the plaintiff was arrested and subsequently convicted in June of 2012 of reckless endangerment first degree and breach of peace second degree;  the charges and convictions stem from domestic violence of which the defendant was the victim.   The plaintiff received an eighteen-month suspended sentence and probation.   A violation of probation was admitted to and the plaintiff reports his probation was reinstated with a term of approximately one year remaining.   The State's Protection Order Registry reflects there is a Standing Criminal Protective Order in place which precludes contact between the parties and orders the plaintiff to stay away from the defendant's residence.   Said order tentatively expires on or about November 29, 2013.

On or about February 8, 2012, the plaintiff quit claimed his 1/5 interest in 130–132 Butler St. to his brother Sean in consideration of “$1.00 and other valuable consideration.”   Defendant's exhibit C. The plaintiff claims his conveyance of his 1/5 interest to Sean had nothing to do with his May 14, 2012, filing for divorce.   The plaintiff contends he quit claimed his interest in the property because he wanted nothing more to do with 130–132 Butler St., he cannot afford to maintain it and because the defendant takes everything from the plaintiff.   The defendant's counsel had a lis pendens regarding the Butler St. property recorded with the New Haven Land Records on June 25, 2012.

Moving forward, the plaintiff requests that this divorce be a ‘closed’ divorce.   When the court inquired as to what was meant by a ‘closed’ divorce the plaintiff explained that in the future if he were to become rich his wife would not get anything and likewise if she were to acquire wealth he would not receive anything from her.   The plaintiff represents he has a lot of potential, both as a plumber and may start his own plumbing and heating company or he may pursue a musical career.   Regardless, he does not want to have to pay anything to the defendant.

The plaintiff is also seeking to have the defendant vacate 132 Butler St. He claims she has lived there for three years and throughout her stay she has made no monetary payments to live there.

The plaintiff alleges the defendant has a pending lawsuit with the City of New Haven of which he should receive a portion of any settlement or judgment.   No additional testimony or evidence of an alleged lawsuit was forthcoming at trial and therefore this court declines to make any orders regarding said lawsuit.

Custody/Parenting Plan

The final custody and parenting plan, agreed to by the parties, and found to be in the minor children's best interest was ordered by this court on February 26, 2013.   Said orders are hereby incorporated by reference into the final judgment.⁸

Neither party has yet to complete the requisite parenting education classes.   Both parties, shall within ninety days from the judgment, successfully complete the state sanctioned parenting education classes.

Educational Support Orders

The defendant credibly testified that she made sure her two adult children went to college.   This court surmises that it is more likely than not that had the defendant's marriage to the plaintiff remained intact she would likewise have contributed to her minor children's post-secondary education.   Although the court cannot conclude the same as to the plaintiff, the court nonetheless retains jurisdiction pursuant to C.G.S. § 46b–56c.

Marital Assets

This court has wrestled with the plaintiff's conveyance of his interest in the Butler St. home three months prior to filing for divorce.   The court concludes that the plaintiff's conveyance was clearly motivated by his desire to preclude the defendant from being awarded any part of this marital asset and additionally to pave the way for his siblings to initiate eviction proceedings against the defendant.⁹

At the time of trial, the defendant credibly testified she now makes no claim to the Butler St. house.¹⁰  She believes her deceased mother-in-law, who worked hard to buy the Butler St. house, and who died from a disease similar to what the defendant suffers from, would want the plaintiff to do the right thing for his children;  namely that the plaintiff ensure that his children inherit his ownership share.   Moreover, the defendant would like to relocate from the Butler St. home but requires financial assistance to do so.

Given the pleadings and positions of the parties this court concludes that although the conveyance of the Butler St. residence was intentionally done to deprive the defendant of sharing in a marital asset, this court lacks the authority to order that said asset be reconveyed to the plaintiff at this time.

Alimony

In determining whether to award alimony and the duration and amount of the award, the court “shall consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”  C.G.S. § 46b–82.  “There is no absolute right to alimony ․ Awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court.”  (Citations omitted.)  Weinstein v. Weinstein, 180 Conn.App. 622, 637 (1989).

The defendant wife is in dire straits—both financially and medically.   She cannot work and she is the custodial parent of the parties' minor children.   She is fortunate in that she has adult children who are of significant assistance to her but given her present health and the need for substantive ongoing medical treatment she is utterly incapable of supporting herself and her children.¹¹

The plaintiff is self absorbed and anger-prone.   To his credit, he advocates well for himself, he is a licensed plumber and claims musical talent.¹²  Nonetheless he feels victimized by his wife, the child support system, this court and past employers.   Throughout the dissolution proceedings he consistently claimed he was not being treated fairly and in closing arguments he asserted Connecticut is a “woman's state.” ¹³  His claims of unfairness and a lack of impartiality ring hollow, both in life and in this dissolution proceeding.   He claims he seeks substantive employment but union rules, unfair employers and difficult economic times makes it impossible for him to earn a living.   He claims he has been unjustly incarcerated by magistrates for failure to meet child support obligations.   In reality he desires to control the defendant in any way he can and he resents being told what to do and having to be saddled with an obligation to support his family.   Therefore, when a restraining order barred the plaintiff from returning to the home he elected to convey his interest in the property to his brother and file for divorce.   He has not filed income tax returns in over ten years.   He intentionally lives marginally so as to appear judgment proof.   In short, he will go to extreme lengths to circumvent his obligation to support his family.¹⁴  His request that his divorce result in a “closed” divorce, clearly reflects not only his belief that he is capable of earning a viable living but also an intent by him to earn substantive income if and when he is free of court scrutiny.

The lack of marital assets, the plaintiff's conveyance of his share of the Butler St. property, the plaintiff's reprehensible behavior throughout the marriage and the defendant's financial and health issues dictate the plaintiff pay the defendant alimony.   The court imputes to the plaintiff a nonunion hourly rate of a plumber at $22.00/hr net.   Therefore the plaintiff shall pay alimony to the defendant at the rate of $75.00/wk for a period of ten years.   Said alimony shall terminate if either party dies or if the defendant remarries.   The amount and term of alimony is subject to modification pursuant to C.G.S. 46b–86(a).   If the defendant were to cohabitate, as defined by the statute, said alimony order may be subject to modification pursuant to C.G.S. § 46b–86(b).

The plaintiff shall receive no alimony from the defendant.

Child Support

Orders regarding child support, including HUSKY coverage, and arrearage have been and therefore will continue to be addressed in the support magistrate file, docket no.   NNH FA 07–4024628 S.

Dependency Deduction

The defendant shall claim the minor children as dependents.   Said order shall be modifiable if and when the plaintiff comes current with his tax obligations to the IRS and his child support obligation as to the parties' minor children.

Debt

Each party shall be liable for their individual debt and indemnify and hold the other harmless.

Name Change

The defendant's maiden name of Grier ¹⁵ shall be restored as requested.

Attorney Fees

Given the parties' marginal finances and the court's orders as to alimony, the court declines to order the plaintiff to pay any of the defendant's attorneys fees.

Bernadette Conway, Judge

FOOTNOTES

FN1. The dissolution complaint has the minor child's name spelled Nevhen..  FN1. The dissolution complaint has the minor child's name spelled Nevhen.

FN2. Both parties have children from other relationships.   The plaintiff father's other children are seventeen and fourteen years old and the defendant mother's other children are approximately twenty-six and twenty-two years old..  FN2. Both parties have children from other relationships.   The plaintiff father's other children are seventeen and fourteen years old and the defendant mother's other children are approximately twenty-six and twenty-two years old.

FN3. Nonunionized plumbers earn between eighteen to twenty-five dollars/hour..  FN3. Nonunionized plumbers earn between eighteen to twenty-five dollars/hour.

FN4. The plaintiff is in arrears to the defendant in excess of $20,000.00 in child support.   The defendant testified he is in arrears an additional approximately $20,000.00 for the children he fathered who are not issue of this marriage.   A review of support magistrate file ending in NNH FA 07–4024628 reflects the plaintiff has been incarcerated more than once for failure to pay child support.Because the defendant's unemployment income is dispersed between his children from both this marriage and the children not issue of the marriage, the defendant presently receives $174.62/wk in child support..  FN4. The plaintiff is in arrears to the defendant in excess of $20,000.00 in child support.   The defendant testified he is in arrears an additional approximately $20,000.00 for the children he fathered who are not issue of this marriage.   A review of support magistrate file ending in NNH FA 07–4024628 reflects the plaintiff has been incarcerated more than once for failure to pay child support.Because the defendant's unemployment income is dispersed between his children from both this marriage and the children not issue of the marriage, the defendant presently receives $174.62/wk in child support.

FN5. A dissolution action (NNHF A030481207S) was commenced by the defendant wife in 2003 but withdrawn in 2005..  FN5. A dissolution action (NNHF A030481207S) was commenced by the defendant wife in 2003 but withdrawn in 2005.

FN6. In approximately 2006, the parties and their children lived on Hotchkiss St. in the plaintiff's father's residence.   At some point the plaintiff's father either forced the parties to leave and/or had them evicted..  FN6. In approximately 2006, the parties and their children lived on Hotchkiss St. in the plaintiff's father's residence.   At some point the plaintiff's father either forced the parties to leave and/or had them evicted.

FN7. The defendant pays for the utilities associated with 132 Butler St. which are separate from the utilities for 130 Butler St..  FN7. The defendant pays for the utilities associated with 132 Butler St. which are separate from the utilities for 130 Butler St.

FN8. At the time of trial, the plaintiff complained that he should be able to see his children whenever he wants.   The February 26, 2013 custody/parenting plan as well as the defendant's testimony at trial reflects that the plaintiff will be afforded as much contact with the minor children as he likes..  FN8. At the time of trial, the plaintiff complained that he should be able to see his children whenever he wants.   The February 26, 2013 custody/parenting plan as well as the defendant's testimony at trial reflects that the plaintiff will be afforded as much contact with the minor children as he likes.

FN9. The defendant credibly testified that Wayne Kellman has previously brought her to housing court..  FN9. The defendant credibly testified that Wayne Kellman has previously brought her to housing court.

FN10. The court surmises that the absence of any motion to implead any of the plaintiff's siblings and/or the absence of any mention of the fraudulent conveyance statute reflects the wishes of the defendant..  FN10. The court surmises that the absence of any motion to implead any of the plaintiff's siblings and/or the absence of any mention of the fraudulent conveyance statute reflects the wishes of the defendant.

FN11. The defendant has recently applied for but has yet to be deemed eligible for, social security disability income..  FN11. The defendant has recently applied for but has yet to be deemed eligible for, social security disability income.

FN12. The plaintiff is also active in local New Haven politics.   He has engaged in door to door canvassing for a city candidate and he has participated in, if not led, neighborhood cookouts or barbeques to facilitate community spirit and action.   To the plaintiff's credit he has been involved in the development of a grass root work pipeline in New Haven.   He has had direct contact with both the president of Yale University and the mayor of New Haven regarding employment opportunities for himself..  FN12. The plaintiff is also active in local New Haven politics.   He has engaged in door to door canvassing for a city candidate and he has participated in, if not led, neighborhood cookouts or barbeques to facilitate community spirit and action.   To the plaintiff's credit he has been involved in the development of a grass root work pipeline in New Haven.   He has had direct contact with both the president of Yale University and the mayor of New Haven regarding employment opportunities for himself.

FN13. The discovery process was protracted, due in large part to the plaintiff's procrastination in procuring routine production material.   This court went to significant lengths to ensure the requisite discovery was accomplished in time for trial.   Suffice it to say the plaintiff was accorded tremendous leeway and consideration throughout the entire court process..  FN13. The discovery process was protracted, due in large part to the plaintiff's procrastination in procuring routine production material.   This court went to significant lengths to ensure the requisite discovery was accomplished in time for trial.   Suffice it to say the plaintiff was accorded tremendous leeway and consideration throughout the entire court process.

FN14. The court credits the defendant's testimony that the plaintiff “chauffeurs” friends around and benefits from said activity by either getting use of vehicles or payment by individuals who would otherwise not be able to own/operate automobiles..  FN14. The court credits the defendant's testimony that the plaintiff “chauffeurs” friends around and benefits from said activity by either getting use of vehicles or payment by individuals who would otherwise not be able to own/operate automobiles.

FN15. The dissolution complaint, filed by the plaintiff, has the defendant's maiden name spelled Girer..  FN15. The dissolution complaint, filed by the plaintiff, has the defendant's maiden name spelled Girer.

Conway, Bernadette, J.