Opinion
No. FA 09-4046839-S
July 1, 2011
MEMORANDUM OF DECISION
The plaintiff initiated an action seeking the dissolution of the parties' marriage of almost eleven years. The action was commenced by complaint dated September 11, 2009, and returnable to the court on October 13, 2009.
The defendant has filed five motions seeking the stoppage, discontinuance or dismissal of the complaint. On October 15, 2009, the defendant, as a self-represented litigant, filed a motion for modification seeking, inter alia, the court to stop the case as the plaintiff was aware of another case in another jurisdiction (104). On the same day the defendant, again self-represented, filed a Motion for Discontinuation of Legal Proceeding Against Defendant 105. On March 10, 2010, despite filing such motions, the defendant entered into an agreement wherein he agreed to respond to the plaintiff's outstanding discovery requests. On June 16, 2010, the defendant filed a Motion to Dismiss Legal Proceedings Against the Defendant (118). On June 16, 2010, after a hearing, the court, Dolan J., denied the pending motion to dismiss (121). On September 15, 2010, the defendant filed a Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss (126 and 125, respectively). On September 29, 2010, the Plaintiff filed an Objection to Defendant's Motion to Dismiss (128) and on October 1, 2010 a Memorandum of Law in Opposition to Defendant's Motion to Dismiss (129). On October 5, 2010, after a hearing, the defendant filed a Motion to Present Additional Evidence (130). The plaintiff filed an Objection to Defendant's Motion to Present Additional Evidence, P.L. dated October 6, 2010 (131). On November 22, 2010, the court, Prestley, J. denied the motion to dismiss filed as document 126 (134).
On December 30, 2010, the defendant filed a Motion to Dismiss due to Lack of Subject Matter Jurisdiction (137).
The trial on the dissolution complaint was scheduled for January 6, 2011 when motion 137 was filed. At the hearing on the motion on the day of trial, plaintiff indicated receiving the motion on the Thursday before the New Year's holiday. She indicated that she did a brief in September and did not do a new brief at this time. She further inquired of the court if the court needed a new brief and indicated it would be supplied if requested. On that date, the court indicated it may ask for an updated objection and memorandum of law at the end of evidence. The court has not so elected.
For the Record, 90 Washington Street, Courtroom B4 (FTR) January 6, 2011 10:39:48 a.m.
FTR January 6, 2011 10:42:41 a.m.
Two motions filed by the plaintiff were also argued by the parties at the trial: Motion for Contempt, P.L. filed December 22, 2010 (136), and a Motion for Contempt, P.L. filed January 6, 2011 (145).
The parties appeared at the hearing on the motions and the trial on January 6 and June 6 and 7, 2011. The parties presented closing argument to the court on June 9, 2011. The plaintiff and defendant were each represented by counsel. The court heard testimony from seven witnesses, including each of the parties, and received into evidence twenty-four exhibits. The court considered all of the evidence presented, the applicable provisions of the Practice Book, General Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-81, 46b-82, 46b-84, and 46b-215a, and the Child Support and Arrearage Guidelines. All findings of fact have been made by a fair preponderance of the evidence unless otherwise set forth herein.
MOTION TO DISMISS
The defendant has moved to dismiss the above action, pursuant to Practice Book §§ 25-13(a)(1) and 25-14, for lack of subject matter jurisdiction. As there were disputed issues of fact critical to the determination of the motion to dismiss, the court held an evidentiary hearing on the motion.
A. Background
On December 30, 2010, the defendant filed the fourth motion to dismiss and memorandum of law in support thereof on the ground that this court lacks subject matter jurisdiction because he initiated and proceeded to obtain a divorce from the plaintiff in Kenya. The defendant contends the plaintiff was duly served with process and subject to the Kenyan court's exercise of jurisdiction over the marriage.
B. Findings and Law
The defendant moved to the United States in November 1997. He obtained a degree from the University of Michigan. He obtained permanent residency. He filed the necessary papers for the plaintiff and Saline to move to the United States in 2001. Visas were issued in November 2006. In January 2007, the plaintiff and the eldest child, Saline, moved to the United States. The plaintiff has been a legal permanent resident of the United States since January 20, 2007. The second child of the couple, Angela, was born in the United States on October 27, 2007. The defendant became a naturalized United States citizen in 2008 and in so doing relinquished his Kenyan citizenship. In August 2010, after this proceeding was instituted, Kenya approved dual citizenship and the defendant obtained the same.
At the time the defendant initiated divorce proceedings against the plaintiff in Kenya in August 4, 2009 he was a United States citizen (and not a Kenyan citizen) and he, the plaintiff and their two children were residing in Connecticut.
The Kenya divorce petition provides the plaintiff (the defendant in this matter) and the defendant (the plaintiff in this matter) are both domiciled in the United States. The defendant testified the domicile representation was made in error and it was corrected through the process.
The plaintiff testified, credibly, that it was the intention of both of the parties to make the United States their home. The plaintiff acknowledged being domiciled in Connecticut.
In the summer of 2009, the marriage of the parties clearly was breaking down. There is credible evidence of the defendant engaging in extra-marital affairs and of domestic violence in the marital home and further the plaintiff was, in the words of the defendant, "develop[ing] more confrontational ways in interacting with the Defendant which surely disturbed the Defendant." (Memorandum of Law, document 138, page 2.) The defendant elected to obtain a divorce in Kenya pursuant to which he would benefit financially.
The defendant had the divorce petition prepared while he was in Brazil on a work assignment and the plaintiff and the children were on a vacation in Kenya.
The credible evidence is the plaintiff went to Kenya at the behest of the defendant as he wanted to obtain a divorce in that country. The court does not find credible the claim of the defendant that the plaintiff wanted to go and he relented. The defendant has throughout the marriage been in command of the home life of the plaintiff and the children. Once the plaintiff arrived in Kenya the defendant, without the knowledge of the plaintiff, extended the return date of her ticket and that of Saline for a significant period — which period corresponded to the time she would have been required to remain in Kenya in connection with the divorce proceedings had she been served.
The credible evidence is the defendant attempted to have the plaintiff served at her mother's home in Kisumu but that she was in Nairobi at the time the process server attempted service. The plaintiff's mother alerted the plaintiff to the service attempt, the plaintiff contacted her social worker at DCF and an attorney in Nairobi and decided to immediately leave the country to avoid being served. Based on the credible evidence at the trial, the court does not accept as credible the affidavit of service presented as Exhibit K. The plaintiff denies receiving any paperwork associated with the divorce proceedings in Kenya. She claims, credibly, the defendant first provided her with proof of the proceedings when the trial in this court began.
The defendant did not disclose his assets to the Kenyan court. The divorce decree obtained by the defendant in Kenya did not address the custody of the children, child support, alimony or any property distribution of the parties, other than providing that he would pay maintenance for the upkeep of the children.
The defendant further claims the plaintiff has accepted the benefit of the Kenyan divorce and therefore may not challenge it. His basis for such claim is the plaintiff presented to him medical bills for their minor child per his proposal in the Kenyan divorce decree. The defendant claims the plaintiff received the communication (presumably the decree) and did not object to the proposals and therefore may not now challenge it. The court is not convinced the plaintiff presented the bills to him for payment because or in furtherance of the Kenyan decree.
"A valid divorce judgment is a judgment in rem and is binding on all the world as to the existence of a status which is the subject of the action, that is, the status of being unmarried upon the adjudication of divorce." (Internal quotation marks omitted.) Vogel v. Sylvester, 148 Conn. 666, 670 (1961). "Courts of the United States [however] are not required by federal law to give full force and effect to a judgment granted in a foreign nation . . . On the other hand, judgments of courts of foreign countries are recognized in the United States because of the comity due to the courts and judgments of one nation from another. Such recognition is granted to foreign judgments with due regard to international duty and convenience, on the one hand, and to rights of citizens of the United States and others under the protection of its laws, on the other hand." (Citations omitted.) Litvaitis v. Litvaitis, 162 Conn. 540, 544-45 (1972). "When so recognized, a decree of divorce granted in a foreign country will be given full force and effect not only as to the determination of the parties' status, but also with respect to alimony and child support." Bruneau v. Bruneau, 3 Conn.App. 453, 455 (1985). There are a number of exceptions, however, to a court's application of the principle of comity, most notably, lack of jurisdiction and denial of due process of law. See Litvaitis v. Litvaitis, supra, 162 Conn. 545.
"[W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact." (Internal quotation marks omitted.) Yoder v. Yoder, 31 Conn.Sup. 344, 346, 330 A.2d 825 (1974).
With regard to whether a court has jurisdiction, "[t]he traditional requisite for subject-matter jurisdiction in matrimonial proceedings has been domicil . . . Regardless of its validity in the nation awarding it, the courts of this country will not generally recognize a judgment of divorce rendered by the courts of a foreign nation as valid to terminate the existence of a marriage unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 545-46.
"To constitute domicil, the residence at the place chosen for the domicil must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicil of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home . . ." (Internal quotation marks omitted.) Rice v. Rice, 134 Conn. 440, 445-46, 58 A.2d 523 (1948), aff'd, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957 (1949). "[T]his intention must be to make a home in fact, and not an intention to acquire a domicil." (Internal quotation marks omitted.) Id., 447. "Where . . . it becomes highly advantageous to the claimant temporarily to feign an intention to become a resident for only a brief time, in order to accomplish other ends, his claim of intention will be scrutinized and weighed like any other evidence in the light of his conduct and all the circumstances surrounding it." Id., 448. Moreover, "[a] person may have . . . only one domicil at any one time." Smith v. Smith, 174 Conn. 434, 439, 389 A.2d 756 (1978). "[A] former domicil persists until a new one is acquired . . . Therefore proof of the acquisition of a new domicil of choice is not complete without evidence of an abandonment of the old." (Citations omitted; internal quotation marks omitted.) Rice v. Rice, supra, 446.
In Litvaitis v. Litvaitis, supra, 162 Conn. 546, the Supreme Court affirmed the trial court's refusal to recognize a Mexican divorce decree on the ground that the defendant was not a domiciliary of the Mexican state because he "went to Mexico solely for the purpose of securing a divorce and that he intended to return to Connecticut." More recently, the Superior Court has noted that temporary residence does not constitute a change in domicil when there is no intent to remain. See Nirookh v. Aburabei, Superior Court, judicial district of New Haven at Meriden, Docket No. FA 09 4012235 (May 25, 2010, Burke, J.) [ 49 Conn. L. Rptr. 877] (concluding that defendant was not domiciliary of Jordan where defendant testified that he was looking for work in both Jordan and United Arab Emirates).
In this case, the court finds the defendant left Kenya and moved to the United States for an indefinite period. He relinquished his Kenya citizenship to obtain United States citizenship and became domiciled in the United States — the Kenya divorce petition confirms the same. He did not attend the proceedings in Kenya. He testified that he will not be returning to Kenya at any foreseeable time due to work. The plaintiff made it clear the family intended to live in the United States for an indefinite time. The defendant claimed to be domiciled in Kenya solely to take advantage of their divorce laws; he was not, in good faith, domiciled in Kenya at the time the divorce was rendered.
With regard to whether a court has complied with the requirements of due process, "[i]t is the settled rule of [Connecticut], if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard . . . It is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue." (Citations omitted; internal quotation marks omitted.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985). "[T]he failure of a court to comply with this requirement of notice is a serious breach of a fundamental requirement of due process of law." Winick v. Winick, 153 Conn. 294, 299, 216 A.2d 185 (1965). "In cases in which a divorce decree was issued in a foreign court without one party's knowledge or consent, Connecticut courts have refrained from recognizing the foreign divorce decree under comity." Nirookh v. Aburabei, supra, Superior Court, Docket No. FA 09 4012235 (concluding that plaintiff was denied due process because she received notice of the divorce decree after it had been rendered even though it had not yet been finalized); see Maklad v. Maklad, supra, 28 Conn. L. Rptr. 593; see also Jimenez v. Jimenez, Superior Court, judicial district of New Haven, Docket No. FA 06 4020114 (September 29, 2006, Frazzini, J.).
Based on the earlier findings, the court does not find the plaintiff was afforded due process.
The defendant has in at least two of his earlier motions claimed the Kenyan divorce should be recognized in this court due to full faith and credit and the rule of comity. He has also previously, in his memorandum of law which accompanied the motion to dismiss number 126 argued that the judgment should be given practical recognition. It is well settled, that the full faith and credit clause of the United States Constitution set forth in Article 4 § 1, does not apply to a divorce obtained in a foreign country. See Litvaitis v. Litvaitis, supra, 162 Conn. 544.
The defendant's prior motions of dismiss clearly articulated his claim that the Kenyan judgment should be recognized by this court by reason of the rule of comity and his motions were denied.
The court finds the decisions of Judges Dolan and Prestley to be the law of the case. "The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . [l]t expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Breen v. Phelps, 186 Conn. 86, 99 (1982). However, a judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised the judge may reconsider the question. See, Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31 (2002).
In this case, the issue of comity has been raised and decided twice before. The court concurs with the decisions reached by Judges Dolan and Prestley.
Further, however, the court finds the motion to dismiss should be denied on its merits. Neither the defendant nor the plaintiff was domiciled in Kenya. The plaintiff was not afforded due process in the Kenyan proceeding. The rule of comity is inapplicable in this instance.
The defendant lately claims the divorce decree from Kenya should be accorded practical recognition.
A recent decision of the Superior Court has applied practical recognition for the limited purpose of recognizing a Mexican divorce decree without accepting the foreign court's orders related to financial settlements or child custody. See Hillis v. Hillis, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 00-0179465 (February 19, 2003, Shay, J.) ( 34 Conn. L. Rptr. 232). In applying limited practical recognition, the court noted that "no credible evidence was introduced that the Mexican court had before it the financial affidavits of the parties, or other evidence of their finances, so as to enable it to inquire into the financial resources and actual needs of the parties, much less any evidence of their fitness as parents," and that therefore, "the necessary full and searching inquiry was not conducted by the Mexican court." (Internal quotation marks omitted.) Id., 234.
In this case, the defendant did not provide evidence of the financial resources and needs of the parties and the children. He did not disclose to the Kenyan court the investigation being conducted by the Department of Children and Families (DCF). There was no full and searching inquiry conducted in Kenya.
The defendant has argued the judgment from Kenya should be given practical recognition in that the plaintiff should be prevented from attacking the judgment due to her unclean hands. The basis for the claim of unclean hands is the plaintiff's alleged false report of physical violence by the defendant against her on May 21, 2008. The defendant claims that since he was not arrested and because the police officer investigating the incident did not witness any bruising or other evidence of an injury to the plaintiff, that her allegations are false. The police officer, when questioned by the plaintiff, testified that it can be difficult to see bruising on an African American with dark skin — and the court notes the plaintiff is dark skinned. On the day after the incident, the DCF worker noted the plaintiff to have a black eye and visible bruising. Whether the defendant's actions on May 21, 2008 warranted an arrest is not before the court; the court notes, however, the defendant was substantiated for physical neglect of Angela in connection with the incident.
The court finds the defendant has not introduced sufficient credible evidence to establish that the reporting of the incident of May 2008 by the plaintiff has given her unclean hands. There is no other claim, credible or not, of an equitable reason for the court to give practical recognition of the Kenyan divorce decree.
C. Ruling
For all of the aforementioned reasons, the defendant's motion to dismiss is denied.
II MOTION FOR CONTEMPT, P.L. FILED DECEMBER 22, 2010 (136)
The plaintiff claims the defendant is in contempt of court for failure to pay child support in accordance with the order of the court, Dolan, J., entered on June 16, 2010. The order required the defendant to pay $260 a week commencing June 25, 2010.
The defendant complied with the order until he unilaterally elected to reduce the payment as of October 29, 2010. Despite Judges Dolan and Prestley denying his motions to dismiss, the defendant decided that "all of the pendente lite orders [of this court] have lapsed . . ." See Exhibit 2. The defendant reduced the child support payments without the consent of the court. He did so knowingly and willfully. Even assuming the Kenyan divorce decree was valid (which the court does not so find) the defendant may not ignore an order of the court, but must seek to have it modified or terminated before choosing to ignore it. See, Mulholland v. Mulholland, 229 Conn. 643, 649 (1994).
Accordingly, the court finds the defendant willfully and knowingly violated a valid court order. He had the ability to comply. The court finds the defendant in contempt.
At the time of the trial the defendant paid his child support arrearage to the plaintiff. The remedy for such contempt is set forth below.
III MOTION FOR CONTEMPT, P.L. FILED JANUARY 6, 2011 (145)
The plaintiff claims the defendant is in contempt of court for failure to comply with the automatic orders of the court which were served upon him on September 30, 2009. Number 7 of the automatic orders provides, among other things, that neither party shall cause the other party to be removed from any medical and dental insurance coverage.
The defendant removed the plaintiff from the medical and dental insurance coverage he had maintained for her through his employer. He notified her of such action by his e-mail to her of October 27, 2010. (Exhibit 2.) Again, despite Judges Dolan and Prestley denying his motions to dismiss, the defendant decided to ignore the pendente lite orders of the court. He did so knowingly and willfully.
The defendant testified that he read the automatic orders and he understood them — as he interpreted them. The defendant is a most intelligent man. He is well educated — through schools in Kenya and in the United States. He works as an auditor for a multi-national corporation. The court does not find it to be conceivable that he could have misunderstood the automatic orders of the court. He chose to ignore them.
Accordingly, the court finds the defendant willfully and knowingly violated a valid court order. He had the ability to comply. The court finds the defendant in contempt. The remedy for such contempt is set forth below.
IV THE DISSOLUTION OF THE MARRIAGE A. Findings of Fact
The parties were married in Kenya on August 30, 2000. One child was born to the couple before the marriage: Saline Akinyi was born in Kenya on December 19, 1999. One child has been born to the plaintiff since the date of the marriage: Angela Akoth was born October 27, 2007 in the United States. Angela is a United States citizen.
All of the children reside with the plaintiff. The plaintiff and the defendant have lived in the State of Connecticut for more than one year prior to the filing of the complaint.
The plaintiff is in relatively good health.
While in Kenya, the plaintiff attended the US International University for two years during which time she studied international relations. She also attended an associates degree type program for two years.
She was unable to obtain work in the United States until August 2008 when she began working as a certified nursing assistant. She is currently employed by Companions and Homemakers where she earns $13.50 an hour. She also works, from time to time at Masonicare. The court finds her annual earning capacity to be approximately $41,000 a year.
The defendant is forty years old. He was born in Kenya and moved to the United States in 1994. He attended the University of Michigan, became employed at Stanley Works and then United Technology Corporation (UTC) and recently completed his Masters in Business Administration at Auburn University.
The defendant earns approximately $81,000 a year at UTC. He has recently completed a rotation as an auditor and may be eligible to change his position at the company to one that does not require so much travel. Due to the nature of UTC's business, the defendant may be able to obtain employment in a country other than the United States. The company does not, as of now, have any offices in Kenya.
The family lived in East Hartford after the plaintiff arrived in the United States. In October 2009 the defendant moved out and moved to an apartment in New Britain. The plaintiff and the children left the apartment in East Hartford after the lease ran out in November 2009. An arrearage is payable to the landlord in the amount of $920. The defendant and the plaintiff moved into another apartment in the same complex in New Britain in November 2009. In May 2010 she became concerned for her safety and moved to Waterbury with the children. She selected Waterbury as there is a community of Kenyans who have been of assistance to her and the children.
The complaint alleged that the marriage has broken down irretrievably.
The plaintiff claims the defendant has engaged in extra-marital affairs and that he admitted the same to her after he believed he had obtained a divorce from the courts in Kenya. The defendant denies the same. The court finds the plaintiff to be the credible witness.
The defendant claims the plaintiff has engaged in extra-marital affairs and he intimates she has a medical condition as a result thereof. Although the plaintiff does have a medical condition, the court does not credit the claim of the defendant that the plaintiff was engaged in extra-marital affairs.
The parties are also unable to agree on some fundamental parenting issues. The defendant and the plaintiff are not in agreement, among other things, with how the children are being raised. He believes they are too materialistic. They are unable to communicate with each other with respect to the needs of the children.
The defendant has made known his intention to relocate the children to Kenya (see, in particular, Exhibit 2). He testified that he wants the children to learn to carry water and fetch firewood. He wishes them to live in his village — where there is no running water or electricity.
The defendant is not satisfied the needs of the children are being met in the United States. He is concerned about the interference of partisan people. By this he means, in particular, DCF.
DCF first became involved in the lives of the family on May 22, 2008 when a referral was made by Saline's school. The referral came after the incident of May 21, 2008 when the plaintiff claims the defendant hit her in the side of the face while she was sitting at the computer and while she was holding Angela. The defendant denies hitting her. The police responded to a call made by the plaintiff on that evening, but did not arrest the defendant. They asked him to leave the home for the evening which he did.
The next day Saline told someone at school that she saw her father hit her mother. When DCF investigated they found the plaintiff to have a large bruise on her face and a black eye.
DCF became involved again in May 2009 when they investigated a report of the defendant hitting Saline with a flip flop.
DCF investigated the family and substantiated emotional neglect of Saline and physical neglect of Angela by the defendant. A primary concern of the department was the domestic violence in the home. The concern arose not only by reason of the incidents of May 21, 2008 and the May 2009 disciplining of Saline, but also due to the controlling behaviors of the defendant.
Due to the domestic violence in the home, DCF recommended the family partake in voluntary services, but the defendant would not cooperate. A neglect petition was filed. The plaintiff entered a plea of nolo contendre for neglect due to the children living in conditions injurious to their wellbeing. The defendant would not appear in court and was defaulted. The children were placed with the plaintiff mother under protective supervision. The defendant father was court ordered to engage in parenting classes and domestic violence classes for the perpetrator of such violence. He did not do so. He still has not done so.
The defendant did partake in the parenting education program required by General Statute § 46b-69b. That class is not a substitute for the parenting class ordered by the juvenile court.
The defendant wants to vet his children's friends to be certain they have good moral principles — an admirable goal, except that he includes excessive television and computer usage as being indicative of a child not having good moral principles. Further, the defendant does not want his girls to be taught empowerment and advocacy and for that reason he did not authorize Saline participating in the Girls, Inc. programs that were available to her.
The plaintiff is seeking sole custody of the minor children with the defendant having supervised visitation rights. The defendant is seeking joint custody of the children with primary residence with the plaintiff.
The credible testimony is the eldest child, Saline, is fearful of the defendant. Saline is receiving therapy to help her address such fearfulness and her lack of self-esteem and self-confidence. The juvenile court ordered supervised visitation for the defendant and authorized the plaintiff to be the supervisor.
The defendant claims to love his children. The court believes it. However, he will not engage in programs that he was ordered to attend to learn to meet the needs of the children and to better his parenting skills.
A guardian ad litem (GAL) was appointed by the court. She met with the children and the parties. Unfortunately, Saline was found by the GAL to have a level of knowledge of the legal proceedings that is inappropriate for her age and maturity. The plaintiff has been counseled to avoid discussing the legal proceedings with or within earshot of Saline and Angela.
The GAL recommended joint legal custody as long as it could be ensured that the defendant would not take the children to Kenya. The GAL further suggested that the parties should attend a program, such as Families in Transition or the Peace program, to mediate disputes and to learn to communicate more effectively with each other. All of the recommendations would be subject to modification as the parties' ability to communicate and their relationship improves.
The defendant has made it patently clear that he will not abide by the orders of this court. He willfully violated the pendente lite of the court.
He testified that he will not accept the orders of this court as final orders. He will not accept that this court has jurisdiction.
Other than the defendant's retirement assets, there are minimal marital assets.
The defendant owns real estate in Kenya which he valued at approximately $7,000.
The defendant had a pension from Stanley Works. In April 2010, in violation of the automatic orders, he liquidated that fund and withdrew approximately $4,800. He did not share it with the plaintiff. During the pendency of the proceedings he also received a distribution of approximately $6,100 from a tribal account in Kenya. He did not share that either.
The plaintiff likewise received funds from Kenya; her mother gave her proceeds advanced from the Fellowship of the Leased Coin.
As of the date of the trial, the defendant has various checking accounts at Bank of America, Citibank and American Eagle Federal Credit Union having, in the aggregate, a negligible balance. The plaintiff has a checking and savings account at Bank of America with a zero balance in the savings account and a balance of approximately $690 in the checking account.
The plaintiff has a 2004 Ford Taurus with a value of $3,000 and a loan thereon of $3,000 — there is no equity in the vehicle. The defendant has a 1998 Toyota Avalon worth $2,000.
There are minimal household furnishings.
The defendant has a pension plan with UTC having a value of approximately $15,800. He has a life insurance policy through his employer with a face amount of $82,000.
The plaintiff has a 401(k) through Masonicare having a value of approximately $130.
Additional findings with respect to the liabilities of the parties are set forth below.
B. Additional Findings and Orders
The court makes the additional findings and enters the following orders:
1. Jurisdiction and Dissolution. The court has jurisdiction in this matter which has been pending for more than ninety days.
The evidence clearly established that the marriage has broken down irretrievably and with that finding, the court finds the allegations of the complaint have been proven and are true.
The court finds the defendant to be at greater fault for the breakdown of the marriage than the plaintiff.
The State of Connecticut has not contributed to the support of the parties or their children.
A decree of dissolution may enter.
2. Custody and Access. The court has considered the credible evidence and the factors set forth in General Statutes § 46b-56(c) and hereby orders sole legal custody of the children to the plaintiff mother. The court recognizes it is not adopting the recommendations of the GAL. The court is not bound by the testimony, conclusions, or opinions of any of the witnesses as to the facts or the ultimate issue, which in this case is what custodial and visitation orders would be in the minor children's best interests. See Ford v. Ford, 68 Conn.App. 173, 190 (2002).
Because Saline is fearful of the defendant, he failed to cooperate with and participate in any services ordered by the court in the juvenile proceedings, and as the defendant has made it abundantly clear that he does not feel constrained in the least by any orders of this court, the defendant father's visitation with the children is to continue to be supervised. Visitation is to occur not less than one time a week for not less than three consecutive hours when the defendant is in the country and available to visit. The defendant may have telephone contact with the children on a daily basis.
The plaintiff may, in her sole discretion, permit additional visitation between the defendant and the children, but the decision permitting such further access shall be hers and hers alone to make.
Saline is to continue to engage in therapy.
The parties are ordered not to disparage each other in the presence (or within the hearing) of the children.
Neither party is to take the children out of the country without prior order of the court. The plaintiff is to notify the U.S. Department of State to flag the children's passports so the children cannot be taken out of the country without proper documentation from a court in this country then having jurisdiction over them.
The parties are to engage in a program such as Families in Transition at the Children's Law Center in Hartford, or the Peace Program through Beacon Behavioral Health or another program acceptable to the GAL pursuant to which the parties may mediate their disputes and learn to more effectively communicate with each other.
The orders of the court are, of course, subject to modification as the relationship of the parties and the relationship of the defendant with the children improves.
The court finds the foregoing orders to be in the best interest of the children.
3. Child Support. Based upon the combined net weekly income of the parties (as shown on the plaintiff's financial statement and the earning capacity of the defendant as found by the court), the presumptive minimum basic child support payable by the defendant is $260 per week. After hearing the testimony of the parties and reviewing the financial affidavits, the earnings of the respective parties, and the deviation criteria set forth in Section 46b-215a-3(b)(6) of the Child Support and Arrearage Guidelines Regulations, and considering the court has provided the defendant with the tax exemption for the children, the court orders the defendant to pay the plaintiff the sum of $260 per week for child support. The court orders the child support payment shall be made by immediate wage withholding.
4. Medical Insurance. For so long as the same is available to him, the defendant shall continue to maintain, at his expense, through his current health insurance carrier, health insurance for the minor children; however, if either of the minor children shall not have graduated from high school at the time of her eighteenth birthday, then the provisions of General Statutes § 46b-84(b) shall apply. If medical insurance is not available to defendant at a reasonable cost, the plaintiff shall maintain medical insurance for the children if available at reasonable cost through her employer. If neither party is able to obtain health insurance at reasonable cost through their employer, the plaintiff is to apply for HUSKY or equivalent insurance for the minor children and the defendant shall be responsible to pay the cost of any HUSKY or equivalent insurance premiums. Reasonable cost as used herein shall be as defined in General Statutes § 46b-84(f)(2)(D).
The plaintiff shall obtain her own medical insurance and the defendant shall do so as well.
The defendant shall be responsible for 50% of the amount of any unreimbursed medical, dental, optical, pharmaceutical, psychological, psychiatric, and orthodontic expenses, including any deductibles, for the minor children; however, if either of the minor children shall not have graduated from high school at the time of her eighteenth birthday, then the provisions of General Statutes § 46b-84(b) shall apply. In addition, the provisions of General Statutes § 46b-84(e) shall apply regarding the processing of medical insurance claims for the minor child.
5. Work Related Child Care and Extra-curricular Activities for the Children. The parties shall also equally share the expenses for the children's work related child care and after school programs and for their extra-curricular activities.
The plaintiff currently owes $571 for Saline's afterschool program for the 2010-2011 academic year. The defendant is ordered to pay $285.50 to the plaintiff within thirty days of the date hereof which shall be applied in reduction of the aforesaid obligation.
6. Post-Majority Support. The court finds, if the parties had remained an intact family, it is more likely than not they would have provided for the post-majority educational support of the children. Pursuant to the provisions of General Statutes § 46b-56c, the court reserves jurisdiction to determine educational support and each party reserves her/his right to file a future motion or petition for an educational support order.
7. Alimony. Based upon the statutory factors, including without limitation, the age, education, earnings, vocational skills and work experience of the defendant and of the plaintiff, a time-limited award of alimony is appropriate. See, Ippolito v. Ippolito, 28 Conn.App. 745, cert. denied, 224 Conn. 905 (1992); and that in making an award, the court has taken into consideration the division of the marital property pursuant to General Statutes § 46b-81c. The defendant shall pay to the plaintiff $140 per week as periodic alimony, for five years from the date hereof or, until the date of death of either party, the remarriage of or the cohabitation by the plaintiff whichever may sooner occur. The court orders that alimony is to be paid by immediate wage withholding. It is the intention of the court that this order shall be non-modifiable by either party as to term. By the end of such period the children will be older and the plaintiff should be able to be financially self-sufficient. The alimony shall be includable as income to the plaintiff and deductible by the defendant on his income taxes.
On April 27, 2011, the court, Taylor J., ordered that alimony, if any, as determined at the time of the dissolution would be retroactive, as a pendente lite order, to April 27, 2011 or earlier. Accordingly, the court finds nine weeks have expired for the period of April 27, 2011 to June 30, 2011. The product of the number of weeks times the alimony at $140 week is $1,260. The court finds an arrearage of pendente lite alimony in the amount of $1,260 and orders the arrearage to be paid at the rate of $50 a week until paid in full. The arrearage shall be paid together with the current alimony order and further be subject to immediate wage withholding.
No alimony is awarded to the defendant.
8. Division of property.
(a) Automobiles. The plaintiff shall retain the 2004 Ford Taurus, free and clear of any claim by the defendant. The defendant shall retain the 1998 Toyota Avalon, free and clear of any claim by the plaintiff.
Within thirty days of the date hereof, each party shall execute any documents necessary to effectuate the transfers of such vehicles. Each party shall hold the other harmless from any and all debt secured by their respective vehicle.
(b) Bank Accounts. The plaintiff and defendant shall retain as her/his sole property, free and clear of any claim by the other, their respective checking and savings accounts.
(c) Debts. As the defendant in violation of valid court orders removed the plaintiff from his medical and dental insurance coverage, and as the court has found the defendant in contempt therefore, the defendant shall be solely responsible for payment of the medical bills the plaintiff incurred after the defendant removed her from his medical and dental insurance in violation of the automatic orders. The defendant is ordered to pay the $436 payable to Bradley Memorial Hospital and the $359 payable to Dr. Katz as each is shown on the plaintiff's financial affidavit dated June 7, 2011.
The plaintiff has suffered with an abscessed tooth since early 2011. The court further orders the defendant to be solely responsible for the cost of the dental procedures the plaintiff has not had done to remedy the abscess due to the lack of dental insurance, however the cost to the defendant shall not exceed $3,000. The defendant shall, within thirty days of the date of this memorandum deliver to his attorney the sum of $3,000 which shall be held in escrow pending the receipt by such counsel of a copy of the dental bills so incurred by the plaintiff. Within ten days of the receipt of the bills, the defendant's counsel shall deliver to plaintiff's counsel the amount payable up to the $3,000 limit. All bills that are so payable are to be delivered to the defendant's counsel on or before January 30, 2012. Any balance not needed to pay the bills shall be returned to the defendant.
The defendant is further ordered to pay the $920 payable to Terragon Management, as shown on the plaintiff's financial statement.
Except as specifically set forth above and elsewhere in this memorandum, each party shall be responsible for their respective debts and liabilities as set forth on their financial statements dated June 7, 2011 by the plaintiff and June 6, 2011 by the defendant.
(d) Life Insurance. The defendant shall maintain life insurance in an amount of not less than $200,000 naming each of the minor children as an irrevocable beneficiary thereon for so long as each such child is a full-time student or until she reaches twenty three years of age whichever is first to occur and name the plaintiff as the trustee of the insurance benefit for the children subject to probate court supervision.
Further, the defendant shall, until his obligation to pay alimony terminates, maintain life insurance in an amount of not less than $35,000 naming the plaintiff as an irrevocable beneficiary. The defendant may, on an annual basis, reduce the amount of insurance so maintained to equal the remaining balance of the alimony payable to the plaintiff. The defendant shall provide proof of maintenance of said policies to the plaintiff at least once annually. The defendant shall also notify the insurance companies to send to the plaintiff duplicate notices of any potential lapse or cancellation for non-payment of premium.
(e) Real Property in Kenya. As and to the extent this court has any jurisdiction, the defendant is awarded the real property in Kenya free and clear of any claim by the plaintiff.
(f) Personal Property. Each party shall be entitled to her/his personal property free and clear of any claim by the other party.
(g) Retirement Assets. The plaintiff shall retain her 401(k) through Masonicare.
The defendant dissipated his Stanley Works account retirement asset in violation of the automatic orders. The court may consider a party's dissolution of a marital asset in the context of a dissolution proceeding. See Shaulson v. Shaulson, 125 Conn.App. 734, 740-41 (2010). Within thirty (30) days from the date of this memorandum, the defendant shall transfer to the plaintiff, the sum of $12,000, together with any investment increment accrued after the date the defendant obtained the valuation of the pension account as being $15,790, from his UTC pension plan account. The transfer shall be effectuated by means of a Qualified Domestic Relations Order ("QDRO"), or other appropriate means, which shall be prepared at the expense of the defendant. The defendant shall not withdraw or encumber any monies in his UTC pension plan until distribution to the plaintiff. The court shall retain jurisdiction to deal with any issues which may arise in connection with and to effectuate the transfer of this asset.
9. Tax Exemptions. So long as the defendant is obligated to pay alimony and provided he is current with his alimony and child support as of the end of each calendar year, the defendant shall be entitled to claim both of the minor children as an exemption on his federal and state income tax returns; if he is not entitled to the deduction, the plaintiff shall claim the same. At such time as the defendant is not obligated to pay alimony, and provided he is current with his child support as of the end of each calendar year, he shall be entitled to claim the oldest child on his state and federal income tax return and the plaintiff shall be entitled to claim the youngest child (and the oldest child if the defendant is not current with this child support). When there is only one child eligible to be claimed as a dependent, the plaintiff shall take the exemption in even numbered years and the defendant shall do so in odd numbered years years provided he is current with his child support as of the end of the applicable calendar year.
10. Tax Indemnification. Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that parties' income or deductions.
11. Tax Information. For so long as the defendant has an obligation to pay alimony to the plaintiff and/or child support, the parties will annually exchange their W-2's, 1099's, K-1 and similar forms by February 15 each year and will provide each other with their federal tax returns within five days of filing.
12. Contempt Motions. The court having granted the motions for contempt has considered the appropriate remedies therefore. The defendant has cured his failure to pay child support. As to motion 145, the court has ordered the defendant to pay the medical and dental costs the plaintiff has and shall occur due to his removal of the plaintiff from his medical and dental coverage.
13. Fees. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
14. Effectuation of Orders. Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within ten days of presentment.
Unless otherwise specifically set forth herein, these orders are effective immediately.
SO ORDERED.