Hayley Williams–Vazquez v. Elonzo Williams–Vazquez (2013)

MEMORANDUM OF DECISION

This dissolution of marriage case was tried before the court on July 17 and 18, 2013.   Both parties were represented by counsel.   Each party testified, as did the wife's mother, Gloria Butkiewicz.   A number of exhibits were admitted into evidence.   The court has carefully considered the statutory criteria and relevant case law regarding the dissolution of marriage, alimony, child support, custody, property division, attorneys fees and other related issues.   The court has heard all the evidence and observed the demeanor of the parties.   Based on the credible evidence, the court makes the following findings:

The court has jurisdiction over the marriage.   The plaintiff resided in the state of Connecticut for at least twelve months prior to the commencement of this action.

The parties were married on February 14, 2008 in Meriden, Connecticut.   There are two children issue of this marriage, namely, Jayden Williams–Vasquez, born November 5, 2008;  and Janiah Williams–Vasquez, born on October 26, 2009.   Ms. Williams–Vasquez is not currently pregnant.   The children had been receiving medical insurance benefits through the State of Connecticut HUSKY plan, however the children currently are covered under Mr. Williams–Vasquez' plan.

This is the first marriage for Mr. Williams–Vasquez and the second marriage for Ms. Williams–Vasquez.   She is 30 years old, completed two years of college and is employed as a medical assistant.   Her gross income from her employment is $720.00 and the court finds her weekly net income to be $646.00.   Mr. Williams–Vasquez is employed in sales at a cellular provider.   His gross income is $739.00 per week and the court finds his net weekly income to be $574.00.

The parties have stipulated as to a number of issues regarding the distribution of assets, payment of marital debt and interest which accrued from April 2012 through April 2013 on that debt, child custody and parental access, and dependency exemptions.   The parties disagree on the cause of the breakdown of the marriage, the amount of child support and whether the court should deviate from the child support guidelines, payment of interest or carrying costs for the period October 2010 until April 2012, and counsel fees.

The parties have agreed, and the court finds, that it is in the best interests of the children that the parents share joint legal custody of the minor children and that the children reside primarily with Ms. Williams–Vasquez.   The parties have entered into an agreement setting forth a parenting schedule that includes a two-week rotating schedule in which the father has parenting time based on his time off from work on week one from Tuesday at 4:30 p.m. until Thursday before school or 8:00 a.m., and on week two, from 4:30 p.m. on Monday until Thursday morning before school or 8:00 a.m. The court finds the agreement to be in the best interests of the children.   The father seeks a deviation from the child support guidelines based on the parental access plan.   He argues that his time with the children is substantially in excess of the “normal” visitation schedule upon which the guidelines were based.   The court finds the presumptive child support per the child support guidelines to be $160.00 per week.

The parties disagree as to the cause of the breakdown of the marriage.   Ms. Williams–Vasquez argues that Mr. Williams–Vasquez' infidelity was the cause of the breakdown of the marriage.   She testified that she came home one evening to find one of Mr. Williams–Vasquez' female co-workers alone with him at the house, and upon her arrival, the co-worker fled from the house.   Shortly thereafter Mr. Williams–Vasquez moved out of the house.   Mr. Williams–Vasquez argues that the parties' constant arguing and inability to get along led to the breakdown of the marriage.   He denies that he became intimately involved with the female co-worker until long after he had moved out of the house.   The court finds Mr. Williams–Vasquez' testimony not credible.   The court finds that the marriage has broken down irretrievably and finds Mr. Williams–Vasquez at fault for the breakdown of the marriage.

Ms. Williams–Vasquez also argues that a finding of fault should compel this court to:  1) award her alimony in the amount of $100.00 per week for a period of 3 or 4 years, 2) award her attorneys fees in the amount of $4,500.00 and 3) award her interest/carrying costs on the marital debt that she paid on from the time Mr. Williams–Vasquez left the marital residence in October of 2010 until April 2013, when the parties reached an agreement regarding the marital debt.

In addition to the above issues, the court finds that Mr. Williams–Vasquez willfully failed to comply with plaintiff's validly executed subpoena duces tecum, necessitating a delay in the proceedings, additional court time for Ms. Williams–Vasquez' counsel, and warranting an imposition of sanctions.

DISCUSSION

Child Support

Mr. Williams–Vasquez seeks a deviation from the child support guidelines based on a deviation criteria of shared physical custody.   The preamble to the State Of Connecticut Child Support and Arrearage Guidelines provides in pertinent part:

A finding of shared physical custody should be made only where each parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedule.   The commission deems a normal visitation schedule typically to consist of two overnights on alternate weekends;  alternate holidays;  some vacation time;  and other visits of short duration, which may occasion an overnight stay during the week.   While periods in excess of a normal visitation schedule are required for a finding of shared physical custody, the commission emphasizes that an equal time-sharing is not required for such a finding.   Courts and other officials still must determine what precise level of sharing is sufficient to warrant a deviation from presumptive support amounts.   The commission continues to reject “bright line” definitional test as well as a formula approach to shared custody as a means of affecting support amounts.  Id. at xiii.

While Mr. Williams–Vasquez does have the children more nights than the “normal” visitation set forth in the guidelines, the court does not find that the schedule of visitation is “substantially in excess” of a normal schedule, particularly when Ms. Williams–Vasquez has responsibility for the children every weekend.   The court finds that the application of the guidelines in this matter to be appropriate and equitable.

Alimony

In determining whether to award alimony the court considers the factors set forth in C.G.S. § 46b–82 including “․ the length of the marriage, the causes for the ․ dissolution ․ 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 ․” While the court need not weigh each factor equally, the court must consider all of the factors in determining whether to award alimony.  Caffe v. Caffe, 240 Conn. 79, 82–83 (1997).

Although the court has made a finding that Mr. Williams–Vasquez bears the responsibility for the breakdown of the marriage, the court cannot, as the plaintiff urges, ignore the other factors set forth in the statute.   After considering all of the factors set forth in § 46b–82, and in light of the similarity in the parties' incomes and the income available to Mr. Williams–Vasquez after he meets his child support obligations, the court finds that an award of alimony is not warranted.

Financial Issues

The parties have resolved all but two of the financial issues:  plaintiff seeks an order allocating the cost of “carrying” credit card debt from October 2010 until April of 2011, and plaintiff seeks an award of $4,500.00 in counsel fees.

Plaintiff argues that all payments she made on family debt during the period from October of 2010, when Mr. Williams–Vasquez left the marital home, until April of 2011 should be shared and she should be compensated for one-half of any of the payments she made during that period.   Pertinent to this issue is the agreement the parties reached on March 25, 2013, that was made an order of the court and that the parties have requested be incorporated by reference in the decree.   That agreement provided that the parties “split the ‘family debt’ in the amount of $5,663.56 equally” and that Mr. Williams–Vasquez “pay one-half of the interest billed for the ‘family debt’ from the period of April 2, 2012 to April 2, 2013.” [internal quotations in original].   The plaintiff is required, under the agreement to “provide documentary proof of the interest billed before requiring any payments towards that interest billed.”

To support the plaintiff's claim she introduced into evidence her check register for that period.   She requests that the court enter an order that Mr. Williams–Vasquez pay one-half of all the payments she made that she argues were required to be made to keep the credit card balances out of collections during the period from October of 2010 until April 2, 2012, totaling $4,330.26.   She also testified that she did not make any new charges on the credit card.   However, the check register does not support her contention that she was paying the minimum balances required or that she was not using the credit cards herself during the period in question.   For example, the register notes that certain bills were paid off and were then followed by an additional credit card payment the following month.   Moreover, Ms. Williams–Vasquez testified that Mr. Williams–Vasquez did not provide her with any financial support during that period other than two $800.00 payments.   This also was contradicted by signed receipts by Ms. Williams–Vasquez that she received an additional $1,400.00 over the $1,600.00 during the period in question.   Based on the evidence presented, the court finds the agreement reached by the parties and incorporated into an order of the court on March 25, 2013, appropriately and fairly resolves their respective responsibilities regarding the marital debt.

An award of attorneys fees is governed by § 46b–62, which provides in pertinent part:  “the court may order either spouse ․ to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b–82.”   In light of the court's findings herein, the lack of liquid assets of the parties, and the relative financial positions of each of the parties going forward, the court does not find that an award of attorneys fees is warranted, except for the sanctions as a result of the defendant's failure to comply with the subpoena.

ORDERS

Accordingly, the court makes the following orders:

1. The marriage is dissolved on the grounds of irretrievable breakdown.

2. No alimony is awarded to either party.

3. The parties shall share joint legal custody of their minor children.   Primary residence shall be with Ms. Williams–Vasquez.   The parties shall have parenting time with the minor children as set forth in the agreement of the parties dated July 18, 2013 which is hereby made part of the court file and incorporated by reference in the decree.

4. Mr. Williams–Vasquez shall pay as child support the sum of $160.00 per week in accordance with the child support guidelines, the court having found the application of the guidelines to be equitable and appropriate.

5. Mr. Williams–Vasquez shall be responsible for 34% and Ms. Williams–Vasquez shall be responsible for 66% of the unreimbursed medical and qualifying day care costs in accordance with the child support guidelines.

6. The proposed orders of the State of Connecticut are hereby made part of the court file and incorporated by reference in the decree.

7. The court finds that it is more likely than not that the parties intended to contribute to the post-secondary education costs for their minor children and the court hereby retains jurisdiction over the post-secondary education expenses for the minor children pursuant to C.G.S. § 46b–56c.

8. Mr. Williams–Vasquez shall obtain life insurance in the amount of $150,000.00, if the annual premium for such amount is available at reasonable cost, naming the minor children as beneficiaries.   He shall maintain such life insurance as long as there is an obligation to pay child support or post-secondary education expenses.   The court finds that reasonable cost shall be deemed to be up to $900.00 per year.   If Mr. Williams–Vasquez is unable to obtain life insurance in the amount of $150,000.00 at reasonable cost, he shall obtain the maximum amount available, up to $150,000.00, not to exceed an annual premium cost of $900.00.

9. Ms. Williams–Vasquez shall be entitled to claim the minor child, Janiah, and Mr. Williams–Vasquez shall be entitled to claim the minor child, Jayden, as a dependency exemption on their respective tax returns.

10. Paragraphs 1 through 3 of the court's order of March 25, 2013 regarding the marital debt shall be made part of the court file and incorporated by reference in the decree.   Mr. Williams–Vasquez shall pay his portion of the debt within 60 days of the date of the decree.   Each party shall be solely responsible for all other debt as listed on their respective affidavits and each shall indemnify the other and hold the other harmless on any such debt.

11. Ms. Williams–Vasquez shall be entitled to all right title and interest in the marital residence located at 54 Bret Drive, Meriden, Connecticut, free and clear of any claim by Mr. Williams–Vasquez.   Ms. Williams–Vasquez shall have exclusive use and occupancy of the residence and she shall be solely responsible for all costs and payment of any and all liabilities associated with the residence and she shall indemnify and hold Mr. Williams–Vasquez harmless on any such costs or liabilities.   She shall also make all good faith efforts to sell the property or refinance any existing mortgages on the property to remove Mr. Williams–Vasquez' name from such liability within one year of the date of the decree.   Mr. Williams–Vasquez shall execute a quit claim deed to be held in escrow until the closing date to remove Mr. Williams–Vasquez from any such liability.   The court shall retain jurisdiction over the sale or refinance of the property.

12. Mr. Williams–Vasquez shall pay to Ms. Williams–Vasquez the sum of $89.70 as reimbursement for payment of the motor vehicle tax.

13. The parties have heretofore divided all of their personal property to their satisfaction and each shall be entitled to retain any and all assets and personal property currently in their possession free and clear of any claim by the other, except the recliner that is currently in Ms. Williams–Vasquez' possession and that Mr. Williams–Vasquez shall be entitled to pick up from her residence at a mutually convenient time and date within 30 days of the date of the decree.

14. Each party shall be entitled to retain their respective automobiles, bank accounts, and retirement accounts as listed on their financial affidavits free and clear of any claim by the other.

15. Mr. Williams–Vasquez shall pay to Ms. Williams–Vasquez the sum of $500.00 as result of his failure to comply with a validly executed subpoena duces tecum.   Said amount shall be paid within 30 days of the date of this decree.

16. Each party shall be responsible for their own health insurance.

17. Except as otherwise provided herein, each party shall be responsible for their own attorneys fees.

BY THE COURT

Maureen M. Murpy, J.

Murphy, Maureen M., J.