Dienaba Hane v. Mbaye Cisse (2014)

MEMORANDUM OF DECISION RE MOTIONS FOR CONTEMPT (# 131.00 and # 133.00), MOTION IN LIMINE (# 135.00), MOTION FOR SANCTIONS (DATED FEBRUARY 21, 2014) AND DISSOLUTION OF MARRIAGE

MOTION FOR CONTEMPT # 131.00

The plaintiff asks the court to find the defendant in contempt of the automatic court orders that he not incur unreasonable debts or encumber assets.   The plaintiff was permitted to present evidence in support of this motion as part of the trial of the matter discussed more fully below.   Evidence was presented as to the identity and amounts of the defendant's debts.   The defendant's credit report (Plaintiff's Exhibit 11) indicates that most of the defendant's credit accounts were opened before the commencement of the action, with insufficient detail for the court to determine how much of the outstanding debt was incurred after that date.   Although the evidence shows that at least one credit account with a significant outstanding balance was opened by the defendant after the automatic orders took effect, the court cannot conclude on the basis of the evidence presented that it was unreasonable for the defendant to incur the debt.   The court finds that as to this motion the plaintiff has not sustained her burden of proving that the defendant wilfully violated a court order.   Accordingly, the motion for contempt is denied.

MOTION FOR CONTEMPT # 133.00

This motion requests that the defendant be found in contempt of the court's order dated January 28, 2014 that he pay the sum of $200 to the plaintiff's attorney.   In open court on the date of the trial the defendant paid to the plaintiff's attorney the sum of $200 in cash, accepted by the plaintiff and her attorney in full resolution of the issue presented by this motion.   The motion for contempt is therefore denied.

MOTION IN LIMINE (# 135.00) AND MOTION FOR SANCTIONS (DATED FEBRUARY 21, 2014)

Both of these motions were resolved by certain evidentiary rulings made at the outset of the trial of the dissolution matter.   Therefore, no further orders are necessary.

DISSOLUTION OF MARRIAGE

The trial of the above matter was held on February 24, 2014.   The witnesses were the parties and court-appointed Guardian ad Litem, Marc Darren, Esq.

FINDINGS

Based upon the testimony and evidence presented at trial, the court finds as follows.

1. The court has jurisdiction over the matter and all statutory stays have expired.

2. The parties married on July 22, 1998, at Dakar, Senegal.

3. Both parties have resided in Connecticut for twelve months prior to the institution of this action.

4. There are two children of the marriage, namely Mouhamadou Cisse (born April 20, 1999) and Gaita Cisse (born March 14, 2005).

5. The marriage of the parties has broken down irretrievably, with no possibility of reconciliation.

6. The parties separated on or about August 3, 2012, with each maintaining a separate residence since then.   The children have resided with the plaintiff during this time.

7. Neither party nor any of the children has received financial assistance from the State of Connecticut, except that the children have received HUSKY insurance benefits.

8. The plaintiff is approximately 43 years of age and testified to no health problems.

9. The defendant is approximately 49 years of age.   He underwent open heart surgery in February 2013, from which he has recovered sufficiently to resume full-time employment.

10. The plaintiff's approximate gross weekly income from full-time employment by HomeGoods as a warehouse worker is $390.   Her approximate net weekly income after taxes and mandatory deductions is $364.

11. The defendant's approximate gross weekly income from employment by Mondelez International, Inc. as a driver and warehouse worker is $998.   His approximate net weekly income after taxes and mandatory deductions is $793.

12. The plaintiff has earned a G.E.D. The defendant discontinued his education before obtaining a G.E.D.

13. The plaintiff has completed the required Parenting Education Program but the defendant has not.

The court further finds as follows.   After their marriage in Senegal, the parties moved to the United States, first the defendant followed by the plaintiff.   The defendant is a hard worker who has provided for the bulk of the family's financial needs through his long-time employment by Mondelez International, Inc. and its predecessors, the Kraft/Nabisco companies.   He was out of work for an extended period of time following his surgery in February 2013, but now again works full time.   Due to his medical history he does not work as much overtime as he did before and he is more careful to avoid excessive physical strain.

The plaintiff is the primary caretaker for the couple's two children.   She is also employed full-time but at a significantly lower wage than the defendant.   The two children are healthy, properly cared for and generally doing well academically.   The wishes of both children, as testified by the Guardian ad Litem, are to continue to reside primarily with their mother but to have regular contact with their father.   In recent months the defendant has been visiting the children on Saturdays pursuant to a pendente lite order.

The parties' assets are relatively modest.   Neither owns any interest in real property.   There is significant debt in the sole name of the defendant, which is listed in part on his financial affidavit.   Additional debts of the defendant are set forth on a list which he submitted with his Proposed Orders;  he explained that he could not fit all of the debts on his financial affidavit form.   The parties differ as to whether the plaintiff and the children received any benefit from the debt incurred by the defendant, with the plaintiff testifying that she received no such benefit and the defendant claiming that he incurred debt in order to enable himself to provide for his wife and children.   Neither party presented any significant specific evidence in support of his or her claim.   The impact on the parties' respective financial situations of the allocation of the parties' debt under the orders set forth herein has been considered by the court when making its other financial orders.

Based on the evidence including the testimony of the defendant, and considering both parties' proposed orders, the court finds it likely that the parties would have provided post-majority educational support of the minor children if the family had remained intact.

The court finds two primary causes for the breakdown of the marriage.   The first is the tension inherent in the parties' adjustment to a new home and cultural environment upon their move to the United States from their native Senegal.   The defendant has worked hard to pursue the economic opportunities available in this country, while at the same time trying to preserve the cultural values he learned in Senegal.   In contrast, the plaintiff has been more willing to embrace, and in particular to allow the children to embrace, American customs and values than the defendant considers appropriate.   The court respects both viewpoints and does not find either party to be blameworthy with regard to this issue.

The second cause, which may be related to the first but is viewed by the court as an independent factor, is the manner in which the defendant has treated the plaintiff.   The court finds credible the plaintiff's testimony that the defendant has been verbally abusive to her.   In addition, the evidence shows that within the past two years the defendant has been the subject of three separate criminal protective orders issued by G.A. # 12 in Manchester in favor of the plaintiff as the protected person.   Due to this second cause, the court finds that the defendant bears more responsibility than the plaintiff for the breakdown of the marriage.

During oral argument on the financial issues, the plaintiff presented certain proposed orders for the court's consideration as alternatives to her previously filed written proposed orders.   Under the alternative proposed orders, the plaintiff asks that she be awarded $30,000 from the defendant's 401(k) plan, rather than the $17,500 or 50% previously proposed.   If she were to receive such an award the plaintiff proposes that, in return, she relinquish her claims for alimony and a portion of the defendant's Mondelez Global, LLC Hourly Retirement Plan.

All pertinent criteria established by the Connecticut General Statutes and applicable case law were considered by the court in the entry of the Orders below.

ORDERS

Dissolution of Marriage

The marriage of the parties in dissolved on grounds of irretrievable breakdown.   The parties are declared to be single and unmarried.

Medical Insurance

Each party shall be responsible for his or her own medical and dental insurance and unreimbursed medical expenses.

Custody and Parental Access

Custody. The parties shall have joint legal custody of the two minor children.   The primary residence of the minor children shall be with the plaintiff mother.

Access. The defendant father shall have parental access with both of the minor children each Saturday from 1:00 p.m. to 8:00 p.m. The father shall have the option for extended visitation on one Saturday each month for the purpose of making a day trip with the children to visit his relatives in New York City, provided he gives the mother at least one week's notice of such day trip specifying the time on that Saturday morning when he will pick the children up and the time he will return them on that Saturday evening.   The father shall have the right to reasonable daily telephone or electronic contact with each of the children.

Holidays and Vacations.   The father shall have such holiday and vacation parenting time with the children as the parties may agree from time to time.

Travel. Each parent shall keep the other reasonably informed as to the whereabouts of the children, especially in the case of out-of-state travel.   In the event of an out-of-state trip exceeding 48 hours, the parent who is traveling with the children or arranging the travel of any child shall provide the other parent with a written itinerary including, as applicable, dates of travel, destinations, telephone numbers, addresses, flight information, lodging accommodations, and other pertinent information.   The foregoing orders shall not be construed to permit travel with the children not otherwise permitted by this judgment, or travel by the defendant extending beyond his parenting time unless agreed by the parties or ordered by the court.

Neither party shall travel outside of the United States of America with either or both of the children, or permit either or both of the children to so travel, without the prior written agreement of the parties or a prior court order.   The plaintiff shall have possession of the passport of the minor child Mouhamadou Cisse and the defendant shall have possession of the passport of the minor child Gaita Cisse.

Affections. Neither parent shall make any derogatory comments about the other to or within the hearing of either child.   Neither parent will say or do anything intended or likely to have the effect of estranging a child from the other parent, injuring the opinion of a child toward the other parent, or impairing the natural development of the child's love and respect for the other parent.

Decisions. Each parent shall continue to have a full and active role in making any decisions in the children's lives, including but not limited to education, religious training and practices, camps, and major medical (including psychological and psychiatric) or dental (including orthodontic) treatment.   These orders shall not prevent either parent from making a bona fide emergency medical decision for a child without first consulting with the other parent, so long as the other parent is informed and consulted as soon as is practicable given the nature of the emergency.   The parents shall consult with each other regarding all major decisions in the children's lives and shall provide each other with any authorizations requested so as to allow both parents to obtain medical and educational information about the children.   Each parent shall notify the other of pending events concerning the children's medical conditions, education, extracurricular activities, religious and social life, and shall provide the other with copies of any documents in his or her possession relating to these areas, including but not limited to school report cards.   In reaching any major decisions pertaining to the children, the parties shall be guided by the best interests of the children.   Neither parent shall unreasonably withhold consent to a proposed major decision pertaining to the children.

Notwithstanding the foregoing, in the event of a disagreement between the parties as to any day-to-day decision concerning the children, the plaintiff shall have the right to make the final decision.

Relocation. Neither party shall relocate outside the State of Connecticut, with or without the children, without the prior order of the court permitting such relocation.   If either party plans to move from the town in which he or she currently resides to another town within the State of Connecticut, such party shall provide the other with at least sixty (60) days' written notice of the change of address.

Parenting Education.   The defendant shall, within ninety days of this judgment, complete the statutorily mandated parenting education program and file a certificate of completion of same with the court.   Until such certificate has been filed the defendant shall be precluded from filing any motion for the modification of a provision of this judgment concerning parenting or child support.

Child Support

Weekly Support Payments.   The court finds the presumptive child support payable by the defendant per the Child Support Guidelines to be $230 per week for the two minor children.   However, in view of the coordination of total family support set forth in this judgment, with reference to the division of assets and liabilities ordered hereby, the court finds that the application of the guidelines in this case would be inequitable or inappropriate.   In particular, the court finds that the award to the plaintiff of the sum from the defendant's Mondelez Global, LLC TIP Plan ordered hereby, and the order that the defendant pay the liabilities designated herein, warrant a downward deviation in the amount of weekly child support payable by the defendant

Accordingly, the court orders the defendant to pay to the plaintiff as child support for two children the sum of $200 per week commencing on the date of judgment.

Medical Insurance and Unreimbursed Medical Expenses.   So long as each child is eligible to be covered under the health insurance plan available through his employment, the defendant shall maintain medical and, if available, dental insurance coverage, for each minor child.   The defendant shall from time to time provide the plaintiff with the most recent insurance card available for the coverage he is so required to maintain.   If such insurance ceases to be available for the children under said plan, then each party shall be responsible to maintain such medical insurance for the minor children as may otherwise be available to him or her at reasonable cost.   Reasonable cost for such purpose shall be defined for the defendant as 7.5% of his net available income, and for the plaintiff as 5% of her net available income.   If no private medical insurance is available at a reasonable cost, then the plaintiff shall obtain and maintain medical insurance for the children through the HUSKY program.   The provisions of Section 46b–86(e) of the Connecticut General Statutes shall apply to any medical or dental insurance maintained for the benefit of the children.

All unreimbursed medical expenses of each minor child shall be borne fifty (50%) percent by each party, which is substantially in accordance with the child support guidelines.   Each party shall provide to the other a monthly report of such expenses paid or billed during the previous month;  each parent shall promptly pay to the provider or reimburse to the other parent, as the case may be, that parent's share of such expenses.

Child Care. Each party shall pay fifty (50%) percent of the cost, if any, of work-related child care expenses, which is substantially in accordance with the child support guidelines.

Educational Support.   The court will retain continuing jurisdiction regarding post-majority educational support pursuant to Section 46b–56c of the Connecticut General Statutes, finding that if the family had remained intact it is likely that the parties would have provided such support for their minor children.

Alimony

Considering the causes of the dissolution of the marriage, the length of the marriage, the parties' ages, health and station, the amounts and sources of their respective incomes, and the other pertinent factors set forth in Section 46b–82 of the Connecticut General Statutes, the court orders the defendant to pay alimony to the plaintiff in the amount of one dollar ($1.00) per year commencing on the date of judgment and continuing for a period of six (6) years.   Said alimony shall be modifiable as to amount but non-modifiable as to term.   However, alimony shall terminate upon the sooner event of the death of either party or the remarriage of the plaintiff.   Said alimony shall be subject to the provisions of Connecticut General Statute § 46b–86(b).  The court makes no order of alimony payable to the defendant by the plaintiff.

Property Settlement

Bank Accounts and Life Insurance Policies

Except as may be otherwise set forth herein, each party shall retain any bank accounts, credit union accounts, and life insurance policies in his or her sole name, free of any claim or interest of the other party.

Automobiles

1. The plaintiff shall own the 2001 Honda Accord automobile free and clear of any claim by the defendant.   She shall be solely responsible for all costs associated with the ownership and operation of said vehicle and shall indemnify and hold harmless the defendant from any liability thereon.

2. The defendant shall own the 2004 Honda Odyssey automobile free and clear of any claim by the defendant.   He shall be solely responsible for all costs associated with the ownership and operation of said vehicle and shall indemnify and hold harmless the defendant from any liability thereon.

3. Each party shall execute and deliver to the other party, at no cost, any and all documents or forms necessary to effectuate the terms of the foregoing provisions regarding automobiles.

Other Tangible Personal Property.   To the extent they have not already done so, the parties shall make an equitable division between them of the furniture, furnishings, and other items of personal property owned by them.

Retirement Assets

1. i.   The defendant shall transfer to such IRA plan as the plaintiff may establish the amount of $26,000 from his Mondelez Global, LLC TIP Plan (“TIP Plan”) by a qualified domestic relations order (QDRO).   If the plaintiff chooses to withdraw funds from such IRA, she shall be solely responsible for any taxes and/or early withdrawal penalties thereon.

ii. Any cost associated with said transfer including the preparation of the QDRO shall be borne equally by the parties.   Defendant shall sign all necessary documents to effectuate this transfer, including releases of information for the plan administrator as may be requested by the plaintiff or the administrator.

iii. The court shall retain jurisdiction over this transfer until the QDRO is accepted as a valid order under the defendant's TIP Plan by the plan administrator.

2. The defendant shall retain all rights to his Mondelez Global, LLC Hourly Retirement Plan, free and clear of any claim or right of the plaintiff.

Liabilities. Except as otherwise ordered herein, the following orders shall apply to the liabilities of the parties.

The plaintiff shall be solely responsible for the payment of the balances due on the debts listed on her financial affidavit, and she shall hold harmless and indemnify the defendant with respect thereto.

The defendant shall be solely responsible for the payment of the balances due on the debts listed on his financial affidavit and on the list of debts filed with his Proposed Orders, and he shall hold harmless and indemnify the plaintiff with respect thereto.

Except as otherwise provided herein, each party shall be responsible for his or her own debts and shall hold harmless and indemnify the other party with respect thereto.

Taxes

The parties shall each claim one child as an exemption on his or her tax returns.   When only one child is eligible to be claimed as a dependent the parties shall alternate claiming such exemption each year, with the defendant claiming the exemption in the first year of one exemption.   Notwithstanding the foregoing, if in any calendar year the defendant is delinquent in the payment of any child support as of December 31 of such year, then the plaintiff shall be entitled to claim all eligible children as exemptions for such year.

For as long as any order of alimony or child support remains in effect, the parties shall annually exchange the first pages of their federal income tax returns and copies of all W–2 and 1099 forms issued to them.   This exchange of income information shall take place no later than May 1 of the calendar year following the year for which the returns are due, e.g. the returns and other information for 2014 shall be exchanged by May 1, 2015.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.