Opinion
HHDFA175044148S
03-28-2018
Craig S. WALKER v. Maria E. NORIEGA-CRUZ
UNPUBLISHED OPINION
OPINION
Adelman, J.T.R.
This dissolution of marriage/annulment matter was tried to the court on March 23, 2018. Both parties were represented by competent counsel. The plaintiff and the defendant both testified and the defendant also called as witnesses the plaintiff’s mother and his current girlfriend. The plaintiff offered three items as possible exhibits, but none were accepted as full exhibits on the objection of the defendant. The defendant, however, did stipulate to most of the material purported to be in evidence. The defendant offered fourteen items as possible exhibits, all of which were made full exhibits for the court’s consideration.
The claim for relief by the plaintiff changed several times during the pendency of the action. He initially filed for a dissolution of marriage when the case commenced in February 2017. In August 2017, he filed an amended complaint seeking an annulment (# 107.00). On September 22, 2017, he filed a pleading titled " Revised Complaint" again seeking an annulment (# 110.00). In December 2017, he filed two amended complaints at the same time one for dissolution of marriage (# 112.00) and one for an annulment (# 113.00). The defendant filed her answer (# 115.00) denying grounds for an annulment and asking for a dissolution of marriage. No actual cross complaint had been filed by the defendant. At the end of the testimony and after closing arguments, the court suggested to the parties and counsel that it would consider the two amended complaints filed simultaneously on December 7, 2017 as a pleading in the alternative. Neither party objected to the court’s designation of said pleadings.
The plaintiff is an American citizen. This is his third marriage. He is employed full-time by Sun Life Financial with a weekly gross income of $1011 including bonuses and a stated weekly net income of $710. He testified that he holds a master’s degree, but did not specify his area of specialty. According to his current financial affidavit, he experiences a positive cash flow of $100, including payments against his liabilities. His assets are fairly modest consisting of three small bank accounts, a motor vehicle, a mutual fund, two 401(k) accounts and two pensions. Those deferred income assets make up the majority of his estate. The two pensions have a combined value of $159,147, but both were earned at previous employments long before the present marriage. His 401(k) with his current employer has a value of $95,425, but the court heard no testimony as to how long he has been employed at Sun Financial or how much of the current balance was acquired or earned during the marriage. " When faced with the constraints of incomplete information, a court cannot be faulted for fashioning an award as equitably as possible under the circumstances." Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005).
The defendant is a citizen of Mexico, currently living in Connecticut. According to the testimony of both parties, she is fully documented and able to be employed in the United States. In colloquial terms, she has her green card. This is the defendant’s first marriage. In Mexico, she had been employed as an administrative assistant to a bank manager when she met the plaintiff. According to the plaintiff, the defendant’s position was eliminated when her boss was transferred to another city. The defendant testified that she was offered another position with the bank, but elected to leave employment as she and the plaintiff were engaged and she was planning to immigrate to the United States. She testified that she had a tenth grade education in Mexico and had taken some classes to improve her English. According to her testimony, she owns a home in Mexico which she valued to be worth $53,740 net of a mortgage obligation. She has been renting her home since she immigrated to this country and her testimony was that the rent essentially covers the expenses. She also has a 17 percent interest in her mother’s home, which she listed as having a fair market value of $85,000. Her interest would be $14,450 gross of any costs associated with a sale. Her mother holds a life use in the property so the current value of this interest is very speculative at best. She owns an older vehicle, which remains in Mexico. Her only other asset is a bank account with a current balance of approximately $17,000. According to her testimony, about $5,000 of that total represents money she brought with her from Mexico.
The defendant spoke English well and did not request the assistance of an interpreter at any time, but she did demonstrate some difficulty understanding some questions. That was easily remedied by having the question repeated or restated. The court did not think that she was unreasonably hampered by proceeding in her second language.
Currently, she is employed at a bakery with a gross income of $513 working six days per week. She lists her weekly net income as being $437. She is renting a room and shares a bath and kitchen with five other tenants. Her financial affidavit indicates that her expenses exceed her income by approximately $150 weekly. Additionally, once she is off the plaintiff’s medical, dental and vision insurance, she will be spending an additional $87 weekly for medical and dental coverage through her employment.
It is the plaintiff’s position that the defendant defrauded him by entering into this marriage so that she could obtain legal status in the USA. In support of this claim, he cites the fact that the defendant returned to Mexico twice after the marriage and remained away from him for long periods of time. He argues that those absences coincide with obtaining the various stages of legal status as an immigrant to the United States. It was his initial testimony that the marriage had never been consummated and that the parties did not truly live as husband and wife.
Much of the plaintiff’s testimony was successfully challenged by the defendant and his credibility was clearly called into question. " It is well established that in cases tried before courts, trial judges are the sole arbiter of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence ..." (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). " The [factfinding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties ..." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906 (2005). The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct. Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what- all, none, or some- of a witness’ testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999); see Emerick v. Emerick, 170 Conn.App. 368, 377, 154 A.3d 1069, cert. denied, 327 Conn. 922, 171 A.3d 60 (2017).
The plaintiff testified that the parties never had sexual relations, but on cross examination he admitted that they were intimate when he visited the defendant in Mexico prior to the marriage. He continued to insist, however, that there had been no sexual relations between the parties during the marriage. The defendant’s testimony was that they had sexual relations at that time and many other times, including on their wedding night, and also during the period they resided with the plaintiff’s parents. She presented to the court photographs of the parties visiting her family in Mexico, at their wedding reception and during their honeymoon, all of which portrayed what appeared to be a normal loving relationship. (Defendant’s exhibits A, B and D.) It was the defendant’s position that the marriage failed because she believed the plaintiff was involved with other women both before and during the marriage. While she did not have clear proof of an affair, the preponderance of evidence supports her view of the facts. On balance, however, the court cannot fault one party more than the other for the failure of this rather strange marital relationship.
The major issue between the parties, aside from whether the marriage should be annulled or dissolved, is the defendant’s request for alimony. The plaintiff’s argument is that the defendant has a job in Mexico and owns a home there. She came to the United States with very little and that is what she has now. In his view, she is no worse off now than she was at the time they married. She simply can return to Mexico and live in her own home.
The defendant counters the plaintiff alleging that having given up her job to marry the plaintiff it would be very difficult for her to find new employment in Mexico. Her undisputed testimony is that women of her age have great difficulty obtaining employment and that her prospects for meaningful employment are better in the United States than they would be in her native country.
" It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses ... It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action." (Emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010). The court has listened carefully to the witnesses and assessed their credibility. The court has reviewed all the exhibits and given them the appropriate weight. The court has applied all applicable law as explained and interpreted by our appellate courts. The court unseals all financial affidavits and takes judicial notice of all pleadings in the court’s file. Accordingly, the court makes the following findings of fact:
A. The court has jurisdiction over this matter;
B. All statutory stays have expired and the court may proceed to judgment;
C. The allegations of the amended complaint (# 112.00) have been proven;
D. The marriage of the parties was a legitimate marriage;
E. The parties bear equal responsibility for the failure of the marriage;
F. The plaintiff is in good health and is employed, earning a weekly gross income of $1,011 and a weekly net income of $710 including bonuses received;
G. The plaintiff’s education includes a master’s degree;
H. The defendant’s health is adequate to allow her to be employed, but she has some health issues that require medication and future treatment;
I. The defendant lacks a high school education and is employed, marginally, in a bakery with weekly gross income including overtime of $513 and weekly net income of $437;
J. Her current income does not currently support her rather meager lifestyle and upon the dissolution of the marriage she will have the additional expense of medical insurance estimated to cost an additional $87 weekly; and
K. The defendant does have assets in Mexico including a home and a car. She also has a 17 percent interest in her mother’s home in Mexico in conjunction with her siblings, but her mother has a life use in that property and the value of that ownership interest is speculative at this time.
In accordance with the court’s factual findings as enumerated above, the court hereby ORDERS:
I. The marriage of the parties is hereby dissolved and each is now a separate and individual person;
II. The plaintiff is to pay periodic alimony to the defendant in accordance with the following terms:
A. The plaintiff shall pay $150 weekly commencing on the week following the filing of this judgment;
B. Said alimony payment shall continue for a total of fifty-two consecutive weekly payments;
C. Said alimony payment shall automatically be reduced to $125 weekly for another fifty-two consecutive weekly payments;
D. Said alimony payment shall automatically be reduced to $100 weekly for another fifty-two consecutive weekly payments;
E. Said alimony shall terminate after 156 consecutive weekly payments, the remarriage of the defendant, the death of either party, or the return of the defendant to Mexico for a period longer than two consecutive weeks or a cumulative thirteen weeks in any given calendar year;
F. Said alimony shall be subject to the provisions of General Statutes § 46b-86(b);
G. Said alimony shall be taxable income to the defendant and shall reduce the plaintiff’s adjusted gross income for all tax filing purposes.
III. For as long as the plaintiff has an alimony obligation to the defendant, he is to maintain life insurance with a minimum death benefit of $20,000 naming the defendant as the irrevocable beneficiary of said policy:
A. The plaintiff is to provide proof of said coverage to the defendant no more than ninety days from the date of this judgment and shall provide proof of the continuing coverage every twelve months thereafter;
B. This provision shall be modifiable as the plaintiff’s alimony obligation decreases over time.
IV. If the defendant wishes to avail herself of obtaining medical insurance through the plaintiff’s employer under the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), the plaintiff shall cooperate as needed to effectuate such insurance coverage:
A. Any such coverage shall be the sole expense of the defendant;
B. The defendant shall notify the plaintiff in writing if she wishes to elect COBRA coverage within ten days of the filing of the judgment.
V. Each party shall retain free and clear of any claim by the other party of all real and personal property now in their respective possession including, but not limited to, all bank accounts, investment accounts and deferred income assets;
VI. Each party shall be solely responsible for their debts and liabilities as reported on their respective financial affidavits; and
VII. Each party shall be solely responsible for their legal fees and costs in this matter.
SO ORDERED.