Carla P. Sousa v. Marco P. Sousa (2014)

MEMORANDUM OF DECISION

The trial of the above matter was held on March 7, 2014.   There were no witnesses other than the parties.   The plaintiff, who was represented by counsel, testified at length.   The defendant, who was unrepresented, testified that he agreed with the truth of all of the plaintiff's testimony and had no further testimony to offer.   After the court further explained to the defendant his right and opportunity to present any relevant testimony or other evidence, the defendant again declined to do so.   Therefore, the facts as found herein are based essentially on the plaintiff's testimony and are undisputed.   The parties reached a written agreement prior to trial on certain issues and, after the conclusion of the evidence, made oral argument as to the further orders sought by each of them.   The orders of the court as set forth herein consist of those agreed to by the parties and the additional orders entered by the court after hearing the evidence and arguments.

FINDINGS

Based upon the 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 September 16, 2000, at Hartford, Connecticut.

3. The plaintiff has resided in Connecticut for twelve months prior to the institution of this action.

4. There is one child of the marriage, namely Lucas Sousa, born August 17, 2001.

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

6. Neither party nor the child has received financial assistance from the State of Connecticut, except that the plaintiff and the minor child have received HUSKY health insurance coverage.

7. The plaintiff is 37 years of age and generally in good health, although she suffers from asthma which occasionally causes her to miss a day of work.

8. The defendant is 36 years of age and also suffers from asthma and knee problems, which occasionally affect his ability to work but not for extended periods.   The defendant also has a history of alcoholism.

9. The plaintiff's approximate gross weekly income from employment as a security guard at United Technologies is approximately $367, and her approximate net weekly income from such employment after taxes and mandatory deductions is approximately $315.

10. The defendant's approximate gross weekly income as a plumber/contractor for Bathroom Pros is approximately $700, and his net weekly income from such employment after taxes and mandatory deductions is approximately $593.

11. The parties' marital home (title to which is in the names of both parties), consisting of the real property located at 178 Greenwood Street, East Hartford, Connecticut, is determined to have a fair market value at the time of the trial of $130,000.   Said property is encumbered by a first mortgage having an unpaid principal balance of approximately $121,730.   The parties therefore have equity of approximately $8,270 in the property.   The home is currently under foreclosure, no monthly mortgage payments having been made in approximately fifteen months.

12. The defendant was ordered by agreement of the parties to pay $141 per week in pendente lite child support on July 31, 2013, and he is current in those payments.

13. The defendant was ordered to pay pendente lite alimony in the amount of $100 per week on July 31, 2013;  as of the date of trial he owed an arrearage of $1,420 for such alimony.

14. The plaintiff is a high school graduate who attended 1 1/2 years of college at Manchester Community College.   The defendant ceased his education after his junior year of high school.

15. The parties have agreed that the court shall retain continuing jurisdiction over issues of post-majority educational support for the minor child pursuant to Section 46b–56c of the Connecticut General Statutes.

The court further finds that the parties have lived separately since March 2012, with the plaintiff and minor child continuing to reside in the marital home.   The defendant's departure from the home was the result of action by the Department of Children and Families.

For a period of approximately six years preceding the trial, the defendant consumed alcohol to the point of intoxication on a daily basis.   During that time the defendant also committed adultery.

The defendant's drinking resulted in many arguments between the parties and created an unsafe environment for their son.   There were occasions when the defendant passed out from consuming alcohol when the minor child was in his care, and when he drove a motor vehicle while under the influence of alcohol with the child as a passenger.   In an incident that occurred in August 2012, the defendant attempted to stab himself with a knife in the presence of the child.   For these reasons, the court finds the defendant to bear substantially more responsibility than the plaintiff for the breakdown of the marriage.

Since July 17, 2013 the plaintiff has had sole custody of the minor child pursuant to an agreement of the parties which was made an order of the court.   A further agreement made an order of the court on July 31, 2013 afforded the defendant the right of visitation supervised by the plaintiff.   When conflict arose during the supervised visits the plaintiff suggested alternate supervisors but the defendant would not agree.   With the exception of two visits of five to ten minutes each, one on Christmas and the other on February 8, 2014, the defendant has not visited with Lucas since the summer of 2013.

Lucas is a seventh grade student at East Hartford Middle School.   He is an excellent student, receiving the highest honors on his report cards.   The parties expect him to attend college after high school.   If he continues to reside in East Hartford and attend East Hartford public schools through high school graduation, he will be eligible for a college scholarship of $5,000 per year through a local scholarship program.

The plaintiff seeks sole custody of Lucas.   Due to the minimal contact between the child and his father in the recent past, the plaintiff seeks an order that the defendant participate in reunification services before resuming visits.   The defendant, on the other hand, seeks joint legal custody with a substantial amount of unsupervised parenting time.

The plaintiff previously owned a 401(k) account in her name with a value of approximately $8,000, which she liquidated at a time when both parties had been unemployed to pay household expenses and to maintain the home.   The court has taken this fact, along with all other pertinent factors, into account in its division of property.

The plaintiff also seeks reimbursement of a past payment of $220 which she made for the property taxes on her husband's vehicle, because her name was on the title and she could not register her own vehicle until the taxes were paid.   Considering that the payment in question predated the dissolution of the marriage, and in view of the overall property division ordered hereby, the court does not find it appropriate to order such reimbursement.

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 is 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 plaintiff shall have sole legal and physical custody of the minor child, Lucas.

Access

The defendant father shall participate in reunification therapy with the minor child at the Klingberg Family Centers or a comparable agency.   The expense of such therapy shall be shared equally by the parties.   The plaintiff mother shall use her best efforts to facilitate and encourage the minor child's participation in such therapy, which shall continue for so long as the therapist recommends.   Upon completion of therapy the defendant shall have such visitation as may be recommended by the therapist and agreed to by the plaintiff, or as may be ordered by the court.

Relocation

Neither party shall relocate outside the State of Connecticut, with or without the child, 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.

Child Support

Weekly Support Payments

The court finds the presumptive child support payable by the father per the Child Support Guidelines to be $141 per week for the one minor child.   Accordingly, the court orders the defendant to continue to pay to the plaintiff as child support for one child the sum of $141 per week, by contingent wage garnishment.

Medical Insurance and Unreimbursed Medical Expenses

Each party shall be obligated to obtain and maintain medical insurance for the benefit of the minor child if available at a cost not to exceed 7.5% of his or her net income.   Until such insurance is available the parties shall secure HUSKY benefits for the minor child and share equally in any cost thereof.

All unreimbursed medical expenses of the minor child shall be borne fifty percent (50%) 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 percent (50%) of the cost, if any, of work-related child care expenses, which is substantially in accordance with the child support guidelines.

Extracurricular Expenses

Each party shall pay for fifty percent (50%) of extracurricular and school-related expenses, including but not limited to the cost of trips, books, SAT preparation and registration fees, driver education costs and fees, activity fees, athletic equipment and extracurricular activities, for which the parties shall exchange information and make appropriate reimbursement on a calendar quarterly basis.   Neither party shall be required to expend more than $1,000 as his or her share of such extracurricular expenses during any one calendar year unless both parties agree to the excess expenditure.

Educational Support

At the request and by agreement of the parties, the court will retain continuing jurisdiction regarding post-majority educational support pursuant to Section 46b–56c of the Connecticut General Statutes.

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 periodic alimony to the plaintiff commencing on the date of judgment and continuing for a period of seven (7) years in the amount of ($35) dollars per week.   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.

In addition to the alimony so ordered, the defendant shall pay the sum of $20 per week toward the pendente lite alimony arrearage of $1,420 commencing on the date of judgment and continuing until said arrearage has been paid in full.   All sums due for current alimony and arrearage shall be payable by contingent wage garnishment.

Life Insurance

To the extent that it is available at reasonable cost, defendant shall obtain and maintain a policy or policies of life insurance with a death benefit of $100,000 for so long as there remains in effect a court ordered obligation for child support, or an order for post-majority educational expenses or a reservation of jurisdiction to make such an order.   The irrevocable beneficiary of each such policy shall be the plaintiff for the sole benefit of the child.

To the extent that it is available at reasonable cost, plaintiff shall obtain and maintain a policy or policies of life insurance with a death benefit of $50,000 for so long as there remains in effect a court ordered obligation for post-majority educational expenses or a reservation of jurisdiction to make such an order.   The irrevocable beneficiary of each such policy shall be the defendant for the sole benefit of the child.

Said life insurance obligations shall be an element of support and maintenance of the minor child.   The order for same shall be modifiable upon a substantial change in circumstances and the court shall retain jurisdiction for such purpose.   Each party shall provide to the other, in writing, within ninety (90) days of the date of judgment and then on each anniversary of the date of judgment proof of the life insurance coverage he or she is ordered to maintain.

Property Settlement

Marital Home

The defendant shall within thirty (30) days after the date of judgment quit claim to the plaintiff all of his right, title and interest in and to the real property located at 178 Greenwood Street, East Hartford, Connecticut.   The deed shall be prepared and recorded at the expense of the plaintiff.   The plaintiff shall be solely responsible for all costs associated with said property, including but not limited to the mortgage, taxes, hazard insurance, and utilities, and shall hold the defendant harmless and shall indemnify him for any liability arising therefrom.

The defendant shall participate in the foreclosure mediation process in such manner as may be reasonably requested by the plaintiff, for the purpose of assisting the plaintiff in obtaining a modification of the mortgage on the marital home.   However, nothing contained in these orders shall be construed to require the defendant to execute a new mortgage note or to incur any new liability with regard to the mortgage modification.

Bank Accounts

Each party shall retain the bank accounts and investment accounts in his or her sole name as set forth on his or her financial affidavit, free of any claim or interest of the other party.

Automobiles

1. The plaintiff shall own the 2003 Hyundai Sonata 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 including but not limited to loan payments, if any, and personal property taxes and shall indemnify and hold harmless the defendant from any liability thereon.

2. The defendant shall own the 1995 Ford Econoline van free and clear of any claim by the plaintiff.   He shall be solely responsible for all costs associated with the ownership and operation of said vehicle including but not limited to loan payments, if any, and personal property taxes and shall indemnify and hold harmless the plaintiff 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

The defendant shall retain the personal property presently in his possession, his personal jewelry, his tools, and his fishing equipment.   The plaintiff shall retain the appliances, furniture, furnishings, snow blower, lawn mower, and other personal property located in the marital home as of the date of judgment.   The plaintiff shall have ownership and possession of the leaf blower.

Retirement Assets

Each party shall retain all rights to any pension to which he or she may be entitled, free of any claim by the other party.

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 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.

Legal Fees

Each party shall be responsible for the payment of his or her own legal fees, if any.

Taxes

The plaintiff shall be entitled to claim the minor child for all income tax purposes.

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.