Annie L. Wittmann v. Tim J. Wittmann (2015)

MEMORANDUM OF DECISION

This is an action commenced by the plaintiff wife by complaint dated July 21, 2014 and made returnable to this court on August 26, 2014.  The defendant husband filed an appearance in this matter.  The matter was tried to the court on October 8, 2015.  The State of Connecticut Assistant Attorney General also has an appearance in this matter.  Both the plaintiff and the defendant were present for the trial.  The plaintiff was represented by an attorney and the defendant was self-represented.  Testimony was received from the plaintiff, the defendant and a Family Relations Counselor.  The plaintiff introduced eight exhibits.  The defendant introduced one exhibit.

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.

The parties were intermarried on March 10, 2009 in Putnam, Connecticut.  The plaintiff and the defendant have two children, issues of the marriage, Matthew Whitman born in 2011 and Jose Whitman born in 2013.  Both parties have resided in the State of Connecticut for more than one year immediately prior to the filing of the complaint.  The plaintiff is not receiving any state, federal or local assistance with the exception of Husky insurance benefits for the minor child, food stamps and day care assistance.  The court finds that it has jurisdiction over the parties and the marriage.

The plaintiff mother is thirty-one years old.  She is currently employed as a home health-aid and works Monday to Friday.  Her financial affidavit attributes a weekly gross income from her employment of $286.00 netting $258.00 per week.  She also receives child support from the defendant.  Her previous work experience includes working in a variety of positions in restaurants.  The plaintiff utilizes day care during the week for the children when she is working.  The plaintiff has a GED and is seeking to obtain her certified nursing assistant license in the near future.  She previously had her license receiving it in 2009 but it has since expired.  The plaintiff is confident that she will be able to maintain her current employment.

As to the breakdown of the marriage, the plaintiff gave credible testimony that the parties have been unable to communicate with each other and have been unable to work cooperatively with each other for the benefit of the children.  She also testified that she was the victim of both physical and mental abuse by the defendant during the marriage and that he would often intimidate her.  The parties separated in July 2014 which is when the plaintiff filed for a dissolution of marriage.

The plaintiff gave credible testimony that despite having court orders allowing the defendant to visit with the children and her making the children available, the defendant has neglected to consistently visit with the children.  As an example, since September 2014, he visited with the children six times and has not seen the children since December 24, 2014.  The plaintiff testified that she would like the defendant to visit with the children but would like him to show consistency in his visits and be reliable.  She has showed up at the court ordered visitation pickup location but the defendant has failed to do so and did not let her know in advance that he would not be picking up the children explaining that he did not need to do so.

A Family Relations Counselor testified that she was assigned in 2015 to investigate the custody and visitation issues between the parties.  Her report dated August 3, 2015 was entered as an exhibit by the plaintiff.  In both her report and her testimony in court she stated that she was unable to contact the defendant to participate.  The letters she sent to his address were returned and her phone calls to his contact phone number were unsuccessful.  At no time did he contact her or send her any correspondence despite him knowing that Family Relations would be investigating the case regarding the father's access.  The defendant had previously met with the Family Relations counselor for an earlier evaluation in this case prior to the most recent referral.  The counselor testified that the father had not seen the children much in the last year and one-half.  She testified that she was recommending that the father have visitation through the Access Agency for a three-month period so that he could establish a consistent pattern of visitation and his interaction with the children could be observed with the goal of expanding visitation.

The defendant father is thirty-one years old.  He is a high school graduate and did previously have a certified nursing assistant license but it has since expired.  He currently works as an Independent Living Skills counselor working from Friday to Monday at various hours.  His financial affidavit reveals that he grosses $405.00 a week as a result of his employment and after the payment of child support nets $128.00 per week.  The child support guidelines show a net income of approximately $320.00 a week based upon a slightly higher gross income.  He also testified that he had a second job in the summer in which he earned about $300.00 a week but he is no longer working that job.

The defendant testified that the plaintiff did not show up for many of the scheduled visits at the police department as ordered by the court.  He acknowledged that he has often missed the visitations due to a variety of reasons including his having a vehicle with bald tires, not having enough gas money, having to work, being sick, having a two-hour drive and his mother being ill.  He also testified that since the mother did not show up at the visitation location he stopped coming.  He also testified that at times he would sit in a Dunkin Donuts shop or a drug store nearby to see if the mother did in fact show up which is perplexing because he was not at the police station where he was supposed to be to pick up the children.  The plaintiff did not file any motions for contempt against the mother for her alleged noncompliance with the court orders nor did he contact the mother's attorney.  He also did not make contact with the Family Relations Counselor.  He did testify that he called the office once but was unable to connect with the counselor.  He believes that he has done nothing wrong to be deprived of unsupervised visits with his children and that he does not do drugs.  He is asking the court to award him joint custody and wants to see the children on the weekends.  The defendant also testified that based upon the talks he had with the plaintiff the last day or two, that he believes that he can co-parent with her.

It is the finding of the court that the cause of the breakdown of the marriage are the actions of the defendant in his conduct towards the wife during the marriage.  The plaintiff gave credible testimony that she was the victim of physical and mental abuse during the marriage.  In addition, the defendant has not maintained a relationship with his children and has not availed himself of visitation.  Despite his testimony that the plaintiff was depriving him of visitation, he never once filed a motion with the court attempting to enforce his rights.  In addition, despite his knowing that the matter was referred to Family Relations, he did not avail himself of that service and took no substantive initiative to connect with them in an effort to see his children.  His reasons for not seeing his children showed a total lack of priority of his children in his life.  The defendant does not understand that the children pay a price for his inability to be a factor in their lives.  He makes little effort to make efforts to seriously take his role as the father of the children and has had infrequent contact with them during a great portion of their lives.  Joint custody is not a realistic option for the parents to have as there is little if any communication between the parties and the relationship is contentious.  The plaintiff has been the primary caretaker of the children since the parties separated over a year ago with little help from the defendant.  The defendant testified that for the last few days the parties have been able to cooperate with each other.  That is insufficient to establish a successful co-parenting relationship.

In addition, the court does not consider an award of alimony to be appropriate in this case.  The court also does not grant the plaintiff her request for attorneys fees.

After taking into consideration the statutory criteria set forth in the Connecticut General Statutes as well as the applicable case law 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 plaintiff shall be awarded the sole custody of the two minor children of this marriage and the primary residence of the children.  The defendant shall have visitation of at least six hours a week at a mutually agreeable time with pick up and drop off at a mutually agreeable place.  In the event the parties are unable to agree on the time and place of said visitation, then the visitation shall be at the Access Agency at times as suggested by said Agency after consultation with both parents.  Any fees for said visitation at the Access Agency, should that be necessary shall be paid by the defendant.

3. The defendant shall pay child support to the plaintiff in the amount of $114.00 per week substantially in accordance with the Connecticut Support Guidelines.  The child support obligation shall be secured by an immediate wage execution.  The plaintiff shall pay 66% and the defendant shall pay 34% of any unreimbursed medical expenses in accordance with the Connecticut Child Support Guidelines.  The defendant shall pay 20% of the child care contribution in accordance with the Connecticut Child Support Guidelines.

4. Both parties shall provide medical and dental insurance for the benefit of the minor children if it is available to him or her at a reasonable cost defined as no more than 7.5% of the plaintiff's net weekly income and no more than 7.5% of the defendant's weekly income.  If medical and/or dental insurance is not available, the parties shall cooperate to place or maintain the children on the Husky program or its equivalent.

5. The plaintiff shall claim the minor child Jose Wittman as a deduction for state and federal income tax purposes.  The defendant shall claim the minor child Matthew Wittman as a deduction for state and federal income tax purposes.

6. 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 pursuant to Connecticut General Statute Section 46b–56c.

7. The defendant shall maintain a life insurance on his life in the amount of $75,000.00 naming the plaintiff as irrevocable beneficiary in her capacity as trustee for the children.  The defendant shall maintain said life insurance policy as long as he has a child support obligation.  The defendant shall obtain said insurance and provide evidence of his compliance within 60 days of this judgment.  On an annual basis thereafter, the defendant shall provide the plaintiff with evidence that the insurance policy is in full force and effect.

8.The court does not award alimony to either party.

9. The plaintiff and the defendant shall be solely responsible for their own medical insurance at their own expense.

10. The plaintiff shall retain ownership of the 1999 Nissan Altima automobile free and clear of any claims of the defendant and shall assume all liabilities on said automobile including but not limited to taxes and insurance.

11. The defendant shall retain ownership of the 1996 Chevy Cavalier automobile free and clear of any claims of the plaintiff and shall assume all liabilities on said automobile including but not limited to taxes and insurance.

12. Each party shall retain possession of all household goods, furnishing and possessions now under their possession or control with the exception of the green kayak and one TV as selected by the plaintiff which shall be made available to the defendant within thirty days of this judgment.  If the defendant does not take said property within thirty days of this judgment the property may be disposed of by the plaintiff as she sees fit.

13. Each party shall be liable to pay their respective liabilities as listed on their financial affidavits and shall hold the other party harmless therefrom.

14. Each party is solely responsible for his or her counsel fees, if any.

15. The plaintiff's maiden name of Annie Louise Axtell is restored.

16. Each party shall complete the Parental Education Program within 90 days of this judgment.

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

Graziani, Judge of the Superior Court

Graziani, Edward C., J.