Linda Messina v. Joseph Messina (2013)

MEMORANDUM OF DECISION

The plaintiff wife initiated this action by way of a complaint filed on June 11, 2012, seeking the dissolution of the parties' marriage based upon irretrievable breakdown and seeking joint custody of the minor children.   The plaintiff was represented by counsel.   Both parties appeared and testified at trial.   Numerous exhibits were entered as well.

The court has fully considered the criteria set forth in Connecticut General Statutes §§ 46b–81, 46b–82, 46b–84, and 46b–62 as well as the evidence, applicable case law, the demeanor and credibility of the parties and the testimony of witnesses and arguments of counsel in finding the facts and in reaching the conclusions reflected in the orders in this decision.

FACTUAL FINDINGS

This court finds the following by a fair preponderance of the evidence.   The court has jurisdiction of this matter and all statutory stays have expired.   At least one of the parties has continuously resided in the state of Connecticut for at least one year prior to the filing of this action.   The allegation in the complaint has been proven and is true.   The marriage of the parties has broken down irretrievably with no possibility of reconciliation.   Neither party has received state or local financial assistance during the marriage.

The parties were married on June 27, 1992 in Newington, CT. Two children have been born to the parties:  Erica Lynn Messina, born July 31, 1994 and Danielle Elizabeth Messina, born September 30, 2001.   The parties have submitted a Parental Responsibility Plan dated September 4, 2013 and that plan, coupled with the stipulation of the parties dated September 13, 2012 is accepted by the court.

The plaintiff is 44 years of age, has a Bachelor's Degree and has worked two jobs for most if not all of the marriage.   She has been employed full-time with the Henkle Corporation for the past 26 years and is a supervisor.   She is also employed 6–10 hours per month working for the historic committee of Wethersfield.   In total, the plaintiff earns a weekly net income of $787.29.   Since the parties separated, the plaintiff has paid all of the expenses to maintain the children, the family home, and most, if not all, of the family bills, totaling approximately $93,000.   During the marriage, the plaintiff received gifts and inheritance from her family members.   She has also been and continues to be the “hands on” primary parent with respect to both her minor child and her college age daughter.

The defendant is 44 years of age, has an Associate's degree in Accounting and a Bachelor's Degree in Management.   His Bachelor's Degree was financed by the plaintiff's parents.   While the defendant pursued that degree, the plaintiff worked a full-time job supporting the family.   Over the years, the defendant has worked in various capacities, including employment as an accountant with Blum Shapiro where he interned for three years earning approximately $60,000 gross income annually.   He voluntarily left that position.   He has held and subsequently quit at least five jobs during the marriage and he invested at least $25,000, funded by a 2nd mortgage on the family home, to start a restaurant that failed after he became involved with “unsavory” people.   The defendant has not contributed financially to the family in any manner since 2003.

The defendant has a history of addiction, abuse and sale of illegal substances and prescription pain killers.   He has been involved in at least two automobile accidents, one of which resulted in an injury to his back in 2008.   Those accidents occurred well after the defendant began to abuse drugs.   Although the defendant was able to procure legal prescriptions for oxycodone and other medications, he would “crush and snort” the medication to ingest it.   After obtaining legal prescriptions for narcotics for pain relief, the defendant would run out of medication weeks earlier than scheduled and would experience withdrawal symptoms which included restlessness, vomiting and being emotionally abusive to the plaintiff.   This has all had a negative effect on the plaintiff and the children.   The defendant now claims to be disabled but, at the time of trial, had not qualified for Social Security Disability payments.   While the court can find that the defendant cannot engage in physically demanding jobs, the defendant provided no persuasive documentation or testimony to this court of an inability to work in other kinds of employment.

In 2008, the defendant was arrested for drug possession.   This arrest caused the plaintiff to drive six hours to post bail in the amount of $10,000 to secure the defendant's release.   This amount was paid with the plaintiff's credit card and it remains unpaid.   That same year, the defendant was arrested for domestic violence against the plaintiff.   Subsequently, the parties reconciled with the defendant promising to obtain employment and to take care of his family.   He never did.   Prior to the filing of and during the pendency of the divorce, the defendant has remained uninvolved in the financial support of, or day to day care of the children and he has exercised minimal parenting time with his minor child since vacating the marital home.

In contrast, the plaintiff has maintained the home and the children for years and has continued to do so during the pendency of the dissolution action.   She has continued to support the parties' daughter who is now in college at UConn and who still resides in the family home.

The major assets of the parties include the marital home where the plaintiff and children currently reside, the value of which both parties agree is $225,000;  the retirement assets of the parties as listed on their financial affidavits;  motor vehicles;  and personal items in the home.   At the time of the parties' separation, the plaintiff gave the defendant $10,000 to obtain an apartment.   Instead, he moved into his mother's home and now has $7500 of the original $10,000 remaining.

This court has considered all of the factors set forth in Conn. Gen.Stat. § 46b–82 including but not limited to the causes of the breakdown of the marriage, the ages of the parties, the length of the marriage and the employability and health of the parties.   The major causes for the breakdown of the marriage include the defendant's illegal drug use, his abuse of prescription drugs, his excessive spending, his unwillingness and/or inability to obtain and maintain gainful employment, and his emotional abuse of the plaintiff.   This court has also considered all sources of income used for home improvements and monies advanced to either party during the pendente lite period of this case.

For all of the foregoing reasons, the following orders are entered:

ORDERS

Dissolution:  The marriage of the parties is dissolved on the ground of irretrievable breakdown.

Orders pertaining to children

Child custody:  In accord with the parties' agreement and parental responsibility plan, the parties shall, inter alia, share joint legal custody of the minor children, primary residence with the plaintiff.

Child support:  The defendant shall pay $84 per week in child support for the benefit of the minor child.   This amount is based on a minimum wage earning capacity and is pursuant to Connecticut Child Support Guidelines.   This amount shall be suspended but shall accrue during the determination period of defendant's Social Security Disability status.

Should the defendant ultimately qualify for SS benefits and should he receive retroactive benefits for the children, he shall turn over those sums to the plaintiff, who shall apply those benefits to the defendant's arrearage.   The plaintiff shall retain any excess amount for the children's benefit.   The plaintiff shall also be the sole recipient of any future SS Disability benefits awarded to the minor child.   Should SS Disability benefits for the defendant be denied, the suspension of child support payments shall end and the parties shall return to court for an order on the arrearage.

Health insurance:  The plaintiff shall continue to provide health insurance for the benefit of the minor children for so long as it is available at reasonable cost to her.   The parties shall divide unreimbursed medical expenses equally except that the plaintiff shall be responsible for the children's orthodontia expenses.

Post-majority educational support:  Each party shall reserve his/her right to file a future motion or petition for an educational support order, in accordance with Section 46b–56c of the Connecticut General Statutes.

Life insurance:  As it is self-funded, the defendant shall maintain the life insurance policy from Surety Life naming the two children as sole beneficiaries until said cash value is depleted.   Any additional life insurance available to the defendant through employment or privately obtained by him (if at reasonable cost), up to $200,000, shall be maintained for the children's sole benefit until the youngest child attains the age of 23.

Children's Accounts:  Any accounts currently in the children's names shall be maintained for their benefit with the plaintiff named as custodian.

Dependency Exemption:  The plaintiff shall claim both children, so long as they are eligible, as exemptions for tax purposes annually.

Alimony:  There shall be no regular, periodic alimony awarded to either party.   Each party is awarded $1 per year in alimony, modifiable only in the event that the other party fails to meet their financial obligations as outlined in these orders.

Health insurance:  Each party shall maintain their own health insurance.

Assets

Marital home:  The defendant shall quitclaim his right title and interest in the marital home to the plaintiff.   The plaintiff shall be responsible for any outstanding liabilities on the family home and shall make her best efforts to refinance to remove the defendant's name from the mortgage if he is a co-mortgager.   The plaintiff shall indemnify and hold the defendant harmless from same.

Retirement assets and pensions:  The defendant shall retain the retirement assets listed on his financial affidavit that are in his name, the 2008 Toyota in his possession, the motorcycle, the Rolex watch and the remaining $7,500 on the sum advanced previously by the plaintiff.

The plaintiff shall retain the retirement assets listed on her financial affidavit that are in her name including her pension and all of her retirement and other accounts except that she shall transfer to the defendant, by way of a Qualified Domestic Relations Order, the sum of $20,000 from her Henkel Retirement Savings Account.   The plaintiff shall also retain the Black Honda Civic currently in the parties' daughter's possession.   The parties shall cooperate in signing any documents necessary to effect these transfers.

Liabilities

The plaintiff shall be responsible for the payment of all of the debts listed on her financial affidavit except that the defendant shall be responsible for the joint Capital Visa and Home Depot credit card accounts that he is currently paying.   The defendant shall be responsible for any other debts listed on his financial affidavit.

Personal Property:  If he has not already done so, the defendant shall provide the plaintiff with a list of personal items that he would like from the marital home.   Should the parties be unable to reach an agreement on those items, this court will retain jurisdiction on that issue.

Attorneys fees:  The parties shall each be responsible for their own attorneys fees.

SO ORDERED.

BY THE COURT,

Prestley, J.

Prestley, Linda Pearce, J.