Michael Fishlock v. Vanessa Fishlock (2015)

MEMORANDUM OF DECISION

This is an action commenced by the plaintiff husband by complaint dated March 10, 2014 and made returnable to this court on April 8, 2014.   The defendant appearing by counsel filed a cross complaint on April 17, 2014.

The matter was tried to the court over the course of two days along with the plaintiff's November 17th, 2014 Motion for Contempt and the defendant's November 26th, 2014 Motion for Contempt.   Testimony was received from the parties.   Exhibits were introduced by both parties.

From the testimony and evidence produced at the trial and after assessing the credibility of the witnesses, the court finds the following facts to have been proven.

At the start of the trial, the parties presented an agreed upon parenting plan dated December 2, 2014 seeking the court to adopt it as part of its orders.

The parties were intermarried on March 31, 1999 in Las Vegas, Nevada.   The parties have two children born to the defendant wife since the date of the marriage, Irinel who is fifteen years old and Annika who is nine years old.   Both parties have resided in this state for more than one year immediately prior to the date of the complaint.   Aside from the defendant receiving heating oil assistance, neither party is receiving any state, federal or local assistance.   The court finds that it has jurisdiction over the parties and the marriage.

The plaintiff is forty-seven years old and is in good health.   He graduated high school.   He served in the United States army for three years and then worked as a teamster for eight or nine years.   In 1998 he started working at a casino as a dealer.   He currently works full-time at a casino in a managerial capacity.   His grosses approximately $56,000.00 a year.   His financial affidavit lists his deductions from his pay and his net income.

As a result of an incident that occurred in March of 2014 that occurred with his wife, he was arrested and left the marital home.   He was under a protective order issued by the criminal court but that matter has been dismissed according to the plaintiff.   At the present time the plaintiff resides with either family or friends and states that he lives out of his car as he is unable to afford a residence.   He has borrowed money from his father to assist him with his expenses.

In addition, the plaintiff testified that the defendant has been sending him harassing text messages that are in violation of the April 30, 2014 pendente lite orders that limits the communications to issues concerning the minor children.

The plaintiff attributes the breakdown of the marriage to a multitude of factors including a lack of trust, lack of honesty in their relationship, his wife having personality disorders, untrue allegations of infidelity, jealousy, and being subjected to constant negativity and verbal abuse from his wife.   He testified that he has been subjected to fifteen years of abuse from his wife.

The plaintiff testified that the defendant is understating her income.

As to the defendant's motion for contempt in regard to the unreimbursed dental bills, the plaintiff testified that the bill predated the pendente lite order of April 30, 2014 requiring him to pay unreimbursed dental bills and that he believed the court order was not to be applied to the defendant's medical expenses, but only for the children.   The dental bill was introduced as an exhibit which shows the most recent charge to be $1,000.00 for dental services for the defendant which were billed on April 16, 2014.   The court order of April 30, 2014 which was entered with the agreement of the parties were ambiguous as to whether the orders were intended to apply to the defendant and whether the orders were retroactive or prospective.   Accordingly, the court finds that the defendant has not proven the contempt by a preponderance of the evidence and as such the motion for contempt is denied.

The defendant is forty-four years old and is in good health having resolved a previous medical issue.   She is a high school graduate and attended a community college for three years.   As to her employment, she has worked as a cocktail waitress for the past twenty-three years at a casino.   In addition she has worked as a lifeguard, swimming instructor and a nail technician.   The defendant left full-time employment at the casino to work part-time to care for her children.   She currently works part-time at the casino.   Her financial affidavit submitted to the court reflects a gross weekly income of $409.00 with a net income of $334.00.   Her testimony in court revealed that she understated her tip income by approximately $30.00 a week.   The defendant testified that as a result of her twenty-three year service at the casino, she has seniority and could apply for a full-time position.   She testified however that as she runs a household and is both a mom and dad now that working too much would be too much in that she couldn't physically do it.   She had worked this summer as a lifeguard and swimming instructor on a part-time basis this last summer but voluntarily quit the position.

The defendant had a son from a prior relationship and that child lived with her and her husband.   The husband and her son had a poor relationship which adversely impacted the marriage.

In regard to the motion for contempt filed by the plaintiff, the defendant admitted that she sold a television and gave away the canoe but that was before she was served the court papers.

The defendant attributes the breakdown of the marriage to a number of factors including a lack of communication from her husband.   She testified that her husband is never happy, always uptight, stoned and has had his own life throughout the entire marriage.   She also believes that he was unfaithful to her and that she found empty pill boxes hidden in the rafters of their home that she attributes to her husband.

In regard to the claim by the plaintiff that she sent him harassing emails in violation of the pendente lite orders, the defendant said that they were not harassing, just that she was still texting him to share her emotions.

The marital home located at 705 Ekonk Road in Moosup, Connecticut was purchased by the parties in 2001.   The defendant had previously owned property in New London that she had purchased prior to her marriage to the plaintiff.   The defendant utilized some of the proceeds of the sale of her New London property in the approximate amount of $10,000.00 for the purchase of the marital home with the plaintiff in Moosup.   The parties obtained a recent joint appraisal of the property which valued the property at $200,000.00.   The report of the appraiser dated November 26, 2014 was introduced as an exhibit.   The parties' financial affidavits each values the property at a different amount than the appraisal.   The plaintiff testified that he did significant work on the property including electrical, framing, sheet-rock, landscape, painting and finish work which saved approximately ten to fifteen thousand dollars.   The court values the property located at 705 Ekonk Road, Moosup, Connecticut to be $200,000.00.   The first mortgage on the property is approximately $93,400.00 and the second mortgage on the property is approximately $46,400.00.

The plaintiff desires that the home be sold as he needs the money to obtain a residence.   The defendant desires that she be allowed to remain in the home with the children for their benefit and that she wouldn't qualify for a mortgage if she attempted to buy another residence.

The court finds that both parties have contributed to the breakdown of the marriage.   The parties have been married for over fifteen years and have a relationship that is toxic.   They have an inability to communicate with each other and the distrust and animosity they have each displayed for each other has doomed their marriage.

Both parties have worked during the marriage with the husband working full time and the wife working full time at first but then part time to help raise the parties' children.   The parties are not on solid financial ground at the present time.   The plaintiff's income is substantially more than the defendant's.   The defendant has the ability to work full-time to assist in supporting herself and helping to support the children.   She has more education than the plaintiff and has worked in a variety of occupations.   The court does find that an award of alimony is appropriate in this case.

In regard to the plaintiff's motion for contempt, the court finds that the only allegation that the plaintiff has proved beyond preponderance of the evidence is the allegation that the defendant has sent harassing texts to the plaintiff in violation of the April 30, 2014 order limiting all communications to issues concerning the minor children.   Therefore the court finds the defendant in contempt of court for violation of said order.

The court has considered 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 liabilities and needs of the parties, the opportunity of each for the acquisition of capital assets and income as well as the contribution of each in the acquisition, preservation or appreciation in valuing and distributing their respective estates.   After taking into consideration the statutory criteria set forth in the Connecticut General Statutes as well as the applicable case laws and applying the same to the evidence, the court enters the following orders.

1. A decree is entered dissolving the marriage of the parties on the grounds of an irretrievable breakdown.

2. The court has reviewed the partial dissolution agreement dated December 2, 2014 entitled “Parenting Plan” presented by the parties and finds that the “Parenting Plan” is fair, equitable and the court enters judgment in accordance with the terms of the plan which is incorporated by reference and attached hereto.

3. The plaintiff shall make child support payments to the defendant for the benefit of the minor children in the amount of $225.00 per week, said sum being in substantial accordance with the Connecticut child support guidelines.   The obligation of support and maintenance of the child support obligations shall be subject to the provisions of Connecticut General Statute Section 46b–84.   The child support obligation shall be secured by an immediate wage execution and the plaintiff shall pay said amount directly to the defendant until the wage execution is in effect.   The plaintiff shall be responsible for 50% and the defendant shall be responsible for 50% of unreimbursed medical, dental, orthodontic, ophthalmological and pharmaceutical expenses of the minor children.   The plaintiff shall be responsible for 50% and the defendant shall be responsible for 50% of work-related child care expenses.   The unreimbursed medical and daycare orders are a deviation from the child support guidelines based on the division of assets and liabilities and the best interest of the children.

4. For the tax year 2014, the parties shall file a joint state and federal tax return with any costs for the preparation to be equally shared by the parties.   For said returns for 2014, the parties shall equally share any refund or liabilities therefrom.   Commencing the 2015 tax year and yearly thereafter, the plaintiff shall claim the minor child Annika as an exemption on the state and federal tax returns and the defendant shall be entitled to claim the minor child Irinel as an exemption on the state and federal tax returns.   When there is only one child available for such deduction, the parties shall alternate claiming Annika as a tax deduction with the plaintiff getting the first year.

5. The plaintiff shall pay to the defendant alimony in the amount of $150.00 per week until January 1, 2020 non-modifiable as to both the term and the amount except as hereinafter provided, and terminable upon the death of either party or upon the remarriage of the defendant, whichever shall first occur and modifiable pursuant to Connecticut General Statute Section 46b–86(b).  This alimony is intended as a separate maintenance and said obligation shall not affected by any discharge in bankruptcy.   The alimony shall be secured by an immediate wage execution from the plaintiff's employment and he shall pay said alimony when first due directly to the defendant until it is actually garnished from his employment compensation.

No alimony is awarded to the plaintiff.

6. The plaintiff shall retain ownership of the 1999 Chevy Silverado and the 2007 Nissan Altima as listed on his financial affidavit free and clear of any claims of the defendant.   The plaintiff shall assume and hold the defendant harmless from any encumbrances on said automobiles, including but not limited to loans if any, taxes and insurance.   The defendant shall retain the 2007 Jeep Commander as listed on her financial affidavit free and clear of any claims of the plaintiff.   The defendant shall assume and hold the plaintiff harmless from any encumbrance on said automobile including but not limited to loans, if any, taxes, and insurance.

7. The plaintiff shall maintain his current life insurance policy through the Provident Life & Accident Co. as listed on his financial affidavit naming the defendant as the irrevocable beneficiary thereon for as long as he has a child support or alimony obligation.

8. The plaintiff shall convey to the defendant by quitclaim deed any and all interest he may have in the property located at 705 Ekonk Hill Road, Moosup, Connecticut.   The defendant shall be solely responsible for the mortgages, real estate taxes, insurance and other costs associated with the property and shall indemnify and hold the plaintiff harmless in regards to said property.

The defendant shall further cause the plaintiff's name to be removed from the mortgages securing said property within four years of the date of the judgment or shall list the property for sale.   The defendant shall make an annual application to refinance the property within one year of this judgment starting one year from this judgment.   If the defendant is unable to refinance said property within four years from this judgment, then the defendant shall place the property for sale with a licensed real estate broker and market it upon terms recommended by a realtor until it is sold.   Until the plaintiff's name has been removed from the mortgages the defendant shall keep the mortgage payments current or shall immediately list the property for sale.   The court shall retain jurisdiction in regard to the terms of this section.

9. Each party shall retain any pension, retirement, 401K accounts and/or deferred compensation accounts as listed on their financial affidavits, free and clear of any claim of the other party.

10. The plaintiff shall retain the Citizens Bank account as listed on his financial affidavit free and clear of any claim of the defendant.   The defendant shall retain the Connecticut Community Credit Union account as listed on her financial affidavit free and clear of any claim of the plaintiff.

11. Each party shall retain possession of and is entitled to all household goods, furnishings and possession now under their possession and control free and clear from any claims of the other except as provided by this judgment and as hereafter listed.

12. The plaintiff shall be solely responsible for the debt due Herbert Fishlock and Barry & Barall, LLC as listed on his financial affidavit and hold the defendant harmless therefrom.   In addition, the plaintiff shall be solely responsible for the balance due to the Norwich Family Dental in the approximate amount of $478.00 as listed on the defendant's financial affidavit and shall not be liable to reimburse the defendant for any payments she made on said account.

The defendant shall be solely responsible for the debts due Lowe's, Target, Kohl's, Midland Funding and Mariani, Reck Lane, LLC as listed on her financial affidavit and hold the plaintiff harmless therefrom.

The plaintiff and the defendant shall each be liable for 50% of the small claims judgment as listed on the plaintiff's financial affidavit and the debt due Capital One as listed on the defendant's financial affidavit.

13. The plaintiff shall continue to maintain the medical/dental insurance he is providing for the minor children.   The plaintiff and the defendant shall be solely responsible for their own medical insurance at their own expense and each party shall be entitled to any medical insurance benefits that may exist under COBRA at their own expense for the maximum period allowed by law.

14. Each party shall be responsible for his or her attorneys fees.

15. The plaintiff has ninety days to complete the Parental Education Program.   The defendant has completed the program.

16. The court finds that it is more likely than not that the parents would have provided support to their children for higher education or private occupational school if the family were intact.   The court shall have continuing jurisdiction to enter an educational support order.

17. The defendant's birth name of Vanessa Palmieri is restored.

18. Each party shall promptly execute all documents necessary to effectuate these orders.

19. The plaintiff's motion for contempt dated November 17, 2014 is granted and the defendant is found to be in contempt of the April 30, 2014 court order.

20. The defendant's motion for contempt dated November 26, 2014 is denied.

Graziani, Judge

PARENTING PLAN

1. CUSTODY AND PARENTING TIME

The parties shall have joint legal custody of their minor children.   The primary physical residence of the children shall be with the Defendant Mother, subject to the Plaintiff Father's liberal right to visitation as follows:

Regular Weekly Parenting Time

During the School Year

Father shall have parenting time with the minor children every Monday and Tuesday after school (or at 9:00 a.m. if either Monday or Tuesday is a school holiday) until 8:45 p.m. when he shall return the children to Defendant Mother's residence;

Father shall have parenting time with the minor children every Saturday when he gets out of work overnight to Sunday morning at 11:00 a.m. when he shall return the children to the Defendant Mother's residence.   If the Plaintiff Father is not working on Sunday, he shall return the children to Mother by 6:00 p.m.

During February, April and Summer Vacation (When School is Not in Session)

Father shall have parenting time with the minor children every Monday morning at 9:00 a.m. to Tuesday at 8:00 p.m.;

Father shall have parenting time with the minor children every Saturday when he gets out of work overnight to Sunday morning at 11:00 a.m. when he shall return the children to the Defendant Mother's residence.   If the Plaintiff Father is not working on Sunday, he shall return the children to Mother by 6:00 p.m.

Holiday Parenting Time

Holidays/Special Occasions with the minor children shall be as mutually agreed upon by the parties except that the Mother shall have the children every Mother's Day and the Father shall have the children every Father's Day. In the event the parties are unable to reach an agreement as to a particular holiday then the parties shall have first priority as follows:

ODD EVEN Holiday

Mother Father New Year's Eve, (Dec. 31st to Jan. 1st at noon.)

Father Mother New Year's Day, (Jan. 1st noon to 6:00 p.m.)

Father Mother Easter (Saturday, 4:00 p.m. to Easter Sunday at 7:30 p.m.)

Mother Father Thanksgiving Day

Father Mother Christmas Eve, Dec. 24th at 6:00 p.m. until Dec. 25th at noon

Mother Father Christmas Day, Dec. 25th at noon to Dec. 26th at 6:00 p.m.

The parties shall further have two (2) non-consecutive weeks of vacation time with the children each year during the school's summer vacation period, as agreed to by the parties.

In addition, the parties should cooperate to ensure that the children are able to spend time with each parent on each child's birthday and with each parent on the parent's respective birthday.

2. DECISIONS ON MAJOR ISSUES

Major decisions regarding the children shall be made jointly by the parties.   Major decisions shall be defined as those key issues affecting the minor children's health, education, major medical treatment, psychotherapy, psychoanalysis, or like treatment, religious upbringing and non-emergency health care.

In accepting the broad grant of privileges conferred by this joint custodial arrangement, the parties specifically recognize that these powers shall not be exercised for the purpose of frustrating, denying or controlling in any manner the life style of the other parent.

3. DECISIONS ON ROUTINE ISSUES

Day-to-day decisions of a routine nature, including, but not limited to bedtime, homework, health care, and day-to-day school, religious, social and athletic activities customary for children of like ages and maturity, shall be made by the parent with whom the children are actually staying.   The parents shall endeavor to cooperate and establish a mutually agreeable policy regarding such day-to-day decisions, but the primary responsibility for routine decisions shall rest with the parent with whom the children are then staying.

4. SCHOOL, MEDICAL AND ACTIVITY INFORMATION

Each parent shall be entitled to complete detailed information from any teacher or school and shall be entitled to be furnished with copies of all reports or records with respect to the children.   The parties agree to cooperate with the other to ensure that all information pertaining to the children's school activities, educational progress, physical and emotional health, sports activities, and all other extra-curricular activities, are provided to both parents.   Further, the parties agree to cooperate with the other to ensure the other receives all information regarding opportunities for the children to become involved in school, sports and other activities.   In the event the parties are unable to make arrangements to receive separate notification as provided above, they agree that all information shall be provided by one to the other.

5. TELEPHONE ACCESS

Each party shall be entitled to reasonable access to the children via telephone/email/skype/facetime/text message etc. at all reasonable times when the children are with the other of them.   Each party shall endeavor to encourage communication between the children and the other party.

6. PARENTS' ADDRESSES AND TELEPHONE NUMBERS

The parties agree to always keep the other informed of their address, email address, home telephone number and cellular telephone number.

7. RELOCATION

In the event either party is desirous of moving to a location farther than 20 miles from their current residence, he or she shall notify the other at least 90 days in advance and shall so inform the other of their desire prior to discussing relocation with the children.   The parties shall discuss the anticipated impact that the desired move may have on the children and shall attempt to reach an agreement regarding the move.   If an amended parenting plan, as may be appropriate, cannot be resolved prior to the scheduled time of the move, the court shall retain exclusive jurisdiction pertaining to the children related to such mover.   Nothing herein shall prevent the party not intending to move from seeking a judicial determination that the children remain with the non-relocating party until any such issues are resolved.

8. MISCELLANEOUS

a. All holiday and vacation supersedes the routine parenting schedule, and the holiday parenting schedule supersedes the vacation parenting schedule.

b. If either parent is traveling with the child outside the State of Connecticut for an overnight period or longer, the traveling parent should notify the other parent of the travel plans prior to traveling.   The notification should include travel arrangements and participants, flight information, travel itinerary, overnight accommodations and address, land line access numbers.

c. The non-traveling parent should have reasonable telephone contact with the minor children when they are traveling outside the State of Connecticut with the minor children in excess of 48 hours.

d. Both parents should refrain from involving the child in the parental conflict and should refrain from using the child to deliver messages/requests to the other parent.

Neither parent should discuss the parenting plan, modifications to it or negative statements about the other parent to or in the presence of the minor child and should be responsible for ensuring that family members and third parties also refrain from these discussions with or in the presence of the minor child.

e. Both parents should be responsible for transporting the minor child to and from all activities during their parenting time.

f. Both parents should be responsible for ensuring that homework and assignments are completed during their respective parenting times and that the child is on time and attend school on the days they are responsible for transporting the child to school.   Both parents should be listed as a contact person on all forms for all educational, medical, therapeutic, athletic, etc. providers for the minor children.

g. Neither party shall seek to permanently remove the minor children from the State of Connecticut absent an agreement of the parties or further Order of the Court.

h. If Father's work schedule changes the parties will work together to devise Father's routine or regular weekly parenting time.

Michael Fishlock

Maria C. Barall, Esq.

Attorney for Plaintiff/Father

Vanessa Fishlock

Jonathan T. Lane, Esq.

Attorney for Defendant/Mother

Graziani, Edward C., J.