Opinion
FBTFA154048802
11-23-2015
Guarav Malik v. Kanchan Rana
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Gerard I. Adelman, J.
This dissolution of marriage action was filed on December 11, 2014, and the complaint was made returnable on January 20, 2015. The plaintiff, Guarav Malik, was represented by counsel throughout this proceeding. The defendant, Kanchan Rana, first appeared as a self-represented party on January 8, 2015, and shortly thereafter she filed both an answer and a cross complaint (#101.00 & #103.00). The plaintiff commenced this action on the grounds of irretrievable breakdown, but in her cross complaint, the defendant alleged willful desertion, intolerable cruelty, fraudulent contract, and adultery.
Background
The basic facts regarding the parties, the time period leading up to their marriage, and the few weeks following the ceremony are not in dispute. The plaintiff is 36 years old. He has resided in this country since 2001, and was naturalized as a United States citizen in 2010. This is his second marriage. He earned a bachelor's degree in commerce while still living in India. He formed a computer resale business called Navtech Solutions, Inc. in 2008 that he currently owns and operates. The plaintiff also owns two pieces of real estate located in Hamden, Connecticut. He purchased the first piece, located at 148 Gorham Avenue, in 2010. He occupies the basement apartment and rents out the first and second floors. He values the property at $180,000, and there is no mortgage on said property. The plaintiff bought another property located at 136 Church Street. That property is valued at $160,000 and is also not encumbered by any mortgage obligation. It was also purchased prior to the marriage. His financial affidavit shows a weekly net income of just under $1,000, including his rental income.
The defendant is also in her thirties. She holds both a bachelor's and master's degrees in physiotherapy, having earned the latter in 2007. She has been in the United States previously from 2008-2009 and worked here as a physiotherapist from January 2011 through October 2011. The defendant testified that she earned approximately $51,000 for that ten-month period of employment. According to her testimony, she has not worked in that field, or has otherwise been employed since October 2011.
Their marriage, which took place on October 27, 2012, was arranged by the parties' parents. The plaintiff's mother and the defendant's father met by accident, and in conversation learned that each had an eligible adult child. The parties communicated by phone and mail for a few months, and in October 2012, the plaintiff traveled to India, arriving on October 14, to meet the defendant. He and his parents went to her home, and it was agreed that the parties would marry. The ceremonies took place about two weeks later. The newlyweds honeymooned and then returned to New Delhi. The defendant then moved into the home of the plaintiff's mother, and the plaintiff returned to the United States on November 14, 2015.
In the custom of Hindu marriages, there were several different ceremonies which made up the wedding ceremony.
Once the plaintiff commenced this action, the case had logistical difficulties from the beginning as the defendant is a citizen and resident of India, and claimed to be unable to obtain permission to travel to the United States. Nevertheless, the issue of personal jurisdiction was never raised throughout the proceedings, and much of the early work in the case was done by mail and email. The court additionally permitted the defendant to appear for status conferences by telephone. On June 1, 2015, counsel filed an appearance on behalf of the defendant. With counsel in place, the matter was able to proceed to trial in a more orderly fashion, and the matter was tried on Friday, November 6, 2015, with the defendant participating via video conference. At trial, each party, as well as the plaintiff's brother, testified, and each submitted evidence in support of their respective positions.
Discussion
General Statutes § 46b-81(c), concerning the factors that the court must take into account in dividing property, provides: " In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates."
General Statutes § 46b-82(a), regarding alimony, provides in relevant part: " The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . ."
Because the trial court is in the best position to determine appropriate awards, " [a] fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria." (Internal quotation marks omitted.) Kaczynski v. Kaczynski, 124 Conn.App. 204, 209, 3 A.3d 1034 (2010). " It is well settled that [i]n dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in General Statutes § § 46b-81 (division of marital property), [and] 46b-82 (alimony) . . ." (Internal quotation marks omitted.) Id., 210. The court is not required to give each enumerated factor equal weight, or make express findings as to each factor, so long as it considers the relevant criteria. E.g., Id., 211 (alimony); Coleman v. Coleman, 151 Conn.App. 613, 617, 95 A.3d 569 (2014) (property division).
The parties took opposite positions on various disputes during the trial. One of the primary issues between the parties concerned the reason that the defendant was unable to obtain a visa to travel to the United States. When the plaintiff left for the United States in November 2012, the plan was that the plaintiff would start the paperwork that would allow the defendant to come to Connecticut. He was successful in getting the initial approval for the defendant's visa, but then the process stopped.
The Department of Homeland Security (DHS) received the application on December 11, 2012 (Defendant's Exhibit " L"), and issued the initial approval on March 7, 2013. The approval document indicated that further processing would take place at the consular level, and that the defendant would be contacted by the consulate nearest to her home for that next step.
The dispute concerns when the plaintiff notified the defendant about this approval. The plaintiff testified was that he told her immediately during one of their regular phone or Skype conversations after finding out about the approval. The defendant denies this claim and alleges that she did not learn about this approval until he emailed her a copy of the document in an email dated December 9, 2013, some nine months after it was received. (Defendant's Exhibit " M" .) The plaintiff does not deny that was the first time he sent her the actual form, but insists that he told her about the approval when it was first received. He also alleges that he requested the necessary paperwork from the defendant to proceed to the next step many times. According to the plaintiff, by March 2013, DHS closed the file due to inaction.
It was the plaintiff's position that it was impossible to obtain a visa for the defendant because the defendant had a prior visa that had been revoked due to misuse, and also because she refused to cooperate in the approval process. The defendant denied that her visa had ever been revoked. It was her position that it had simply expired, and that due to some confusion with her employer it was not renewed in time. She admits that she did not hold a valid visa allowing her to travel to the United States since the date of the marriage.
As delineated by our General Statutes, fault in the breakdown of the marriage must be considered in a financial award, and the credibility of a witness is crucial in a case such as this one in which for the most part it is the word of one person against the word of the other in ascertaining fault. " 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 did not find much of the defendant's testimony to be completely credible on the visa issue. To begin, the fact that DHS initially approved the visa application shows that the plaintiff intended to follow through with the plan following their honeymoon. Furthermore, one of the defendant's own exhibits (" K") is an email from the plaintiff to the defendant dated August 3, 2012, which clearly shows that the plaintiff attempted to work with the defendant to get the visa problem resolved, and urged her to give him and the marriage a chance. All of the physical evidence supports the plaintiff's testimony that he made reasonable efforts in a timely fashion to obtain a visa for the defendant. The court also finds the plaintiff's testimony to be more credible than that of the defendant on some of the other disputes as well. The testimony regarding his brother's trip to India is an excellent example of those efforts: The plaintiff testified that he asked his brother, Nikhil Malik (Nikhil), to travel to India in the spring of 2014 in effort to meet with the defendant and her family to resolve their disputes regarding the issues that had arisen following the honeymoon. According to his testimony, the plaintiff did not go himself because by that time the defendant had pressed criminal charges against him. Nikhil then testified about his efforts to resolve the disputes. He claimed that he contacted the defendant and arranged to come to her home to speak with her about resolving the differences between her and his brother. It was his testimony that when he arrived, he was told to leave and the defendant's family called security to have him removed from the premises. Nikhil further attested that they filed criminal complaints against him for trespassing and making threats.
The defendant had advised the court more than once during the pendency of this matter that she was unable to obtain the necessary permission to travel to this country to defend against the plaintiff's complaint. Pursuant to General Statutes § 46b-46 " The court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony or support of children, only if (1) The nonresident party has received actual notice under subsection (a) of this section, and (2) the party requesting alimony meets the residency requirement of section 46b-44." The plaintiff meets the residency requirement under section 46b-44 to commence this action, and was not seeking alimony or other support, but, nevertheless, as mentioned personal jurisdiction was never raised by the defendant, and, as will be explained later, the defendant did have counsel present in the courtroom to submit physical evidence.
It was the plaintiff's claim and confirmed by the testimony of the defendant that an action had been filed against him in February 2014, alleging that he illegally demanded a dowery from the defendant and her family. It would appear that a separate claim was filed against the plaintiff alleging domestic violence, but that is not entirely clear. The defendant testified she filed for a dissolution of marriage against the plaintiff in India in 2015, after he started the action in the United States. The domestic violence allegation may have been distinct from that proceeding. The plaintiff testified that he was afraid that if he returned to India he would be forced to remain to participate in a long drawn out legal proceeding, and that his business and properties in Connecticut would suffer.
According to Nikhil, this visit was in May 2014, and the criminal complaints were filed in July, months after he had returned to Connecticut. His testimony was that when he left India, he had no idea that the defendant would file a criminal complaint against him, and did not even learn about the complaint until months later. The defendant's version of the incident is that she had told her brother-in-law when he called to arrange the visit that she would only speak to her husband and not to him. She did testify, however, that she was not present at the alleged confrontation between Nikhil and her family. No one with actual knowledge other than Nikhil testified about the events surrounding that visit.
The exhibits submitted by both sides would tend to support the plaintiff's version of the postmarital dispute. His written communications were not threatening, but rather asked for a resolution of the disputes. The defendant alleges that his verbal communications were not as nice, but she has no proof other than her testimony to support that allegation. Her credibility is lacking.
The parties' current financial status and earning capacity is next considered in the court's determination. As mentioned, the plaintiff founded and manages his own business. The defendant testified that she has not worked since October of 2012, but has not offered a sufficient explanation for that period of unemployment. She first stated that she had returned to India to have her visa renewed, and did not seek out work after the marriage because she expected to relocate. She then attributed her lack of employment in the last few years to two additional factors. First, it is her claim that she is afraid to leave her home for fear that she will be harmed by her mother-in-law. Her testimony is that the plaintiff's mother is a criminal with many pending charges against her. The defendant admits that she lives an hour away from her mother-in-law, but maintains that she is so afraid of the woman that she rarely leaves her home other than to handle simple errands. The second factor is her health. The defendant claims to suffer from stress-related blood pressure issues. As a result of this problem, she testified that she is prone to blackouts if her blood pressure should suddenly drop. She alleged that she is restricted from driving as a result. No expert evidence nor supporting evidence was offered regarding any medical conditions suffered by the defendant.
At one point in her testimony, the defendant stated that she was only licensed as a physiotherapist in the United States. There was no testimony to clarify this or to indicate how long it might take her to become licensed in India.
The court found the defendant's credibility to be imperfect with respect to this dispute as well. She offered various reasons as to why she could not work, but did not substantiate any of these reasons. Financial orders must be based on credible evidence; e.g., Mensah v. Mensah, 145 Conn.App. 644, 653, 75 A.3d 92 (2013); and the court consequently finds that an award is not warranted based on the parties' earning capacity, vocational skills, education, or employability pursuant to General Statutes § § 46b-81 and 46b-82, considering that the defendant has a master's degree, had previously been employed, and has not offered any evidence to support her claims as to why she cannot work.
In fact, she testified that she worked as a volunteer at a school teaching English. The plaintiff alleges that she also worked in a hospital, but the defendant denied ever telling him that, and no evidence was introduced to support that claim.
The defendant further argued that the plaintiff did not support her after the marriage and that he abandoned her, but the plaintiff testified that he gave his wife $5,000 before he left to return to Connecticut. His claim is that the money would have supported the defendant in India for a significant period of time, and that she was supposed to live with his mother without having any living expenses. The defendant insists that she received no money, and that her mother-in-law evicted her from the house. The plaintiff admits that he did not send any money after the alleged initial $5,000 amount. It would appear that once the defendant left the plaintiff's mother's home, she resided with, and was supported by her family. As mentioned, however, the defendant offered no evidence as to why she could not work in the years between the marriage and the start of the litigation. To some degree, it was the defendant's actions that prevented the plaintiff from meeting his spousal responsibilities to her, and fault does not lie exclusively with one party over the other. See, e.g., Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 137, 869 A.2d 164 (2005) (when neither party is exclusively at fault for the breakdown of a marriage, it has little bearing on the financial award).
It is also clear and undisputed that all of the plaintiff's assets were acquired by his sole efforts years before the parties even met and the defendant has not contributed to those assets in any manner since the date of the marriage. No evidence as to any appreciation in value to any of the assets since the date of the marriage was offered by either party. See, e.g., Bornemann v. Bornemann, 245 Conn. 508, 536-37, 752 A.2d 978 (1998) (value of appreciation considered during time of marriage). In her counterclaims, the defendant has alleged that the plaintiff committed adultery, causing the marital breakdown. Although evidence of a relationship between the plaintiff and another woman was entered into evidence, there is no evidence that such a relationship was sexual in nature, or that it caused the marriage to fail. To the contrary, the evidence presented indicated the relationship followed the breakdown rather than caused it. The defendant testified that she did not consider the marriage over until the plaintiff filed for divorce, and then she saw the Facebook pictures of his vacations with another woman. The defendant also claimed that the breakdown of the marriage was a result of intolerable cruelty and willful desertion. The evidence for these claims were unpersuasive as well, and again, even if true, postdated the breakdown and did not cause the breakdown of the relationship. There was little or no evidence to support the defendant's claim that the marriage was a fraudulent contract. That claim was not proven.
Clearly the defendant feels that she has been tremendously wronged by the plaintiff and his family. She feels cheated and disgraced. The court can sympathize with her position, but her claims for relief reveal a vindictive and punitive motive. She has requested that the court award her lump sum alimony in the amount of $190,000, and to transfer one of the plaintiff's two pieces of real property to her, each of which is worth between $160,000 and $180,000. These are the claims for relief for a marriage that was held approximately two weeks after the parties met and for a relationship in which the parties were physically together for about two weeks.
Overall, this was an extremely short marriage, and the defendant made no contribution to the acquisition or appreciation of any of the plaintiff's property. The court will obviously give great weight to this short duration of the marriage in fashioning the financial award. See, e.g., Loughlin v. Loughlin, 93 Conn.App. 618, 630-31, 889 A.2d 902, aff'd, 280 Conn. 632, 910 A.2d 963 (2006) (only duration of marriage itself is a factor). Both parties are educated and have been self-sufficient in the past. The defendant's claim that she is unable to work is not totally credible, and appears to be based on the stress of this litigation. Now that the litigation is over, that reason should be resolved and should be no longer be a reason to keep her from seeking employment.
Moreover, the court cannot find that the either party is more at fault for the breakdown of the marriage than the other. It would appear that this was an unfortunate arrangement that perhaps was entered into too quickly. Accordingly, in reviewing the facts of this marriage in light of the criteria as set forth in General Statutes § 46b-81 and § 46b-82 regarding the division of property and the awarding of alimony, the court cannot find a reasonable rationale to support the claims for relief filed by the defendant. See, e.g., Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982) (financial orders are intended to be fair and equitable for both parties).
There remain two issues that must be resolved: The defendant's claim that the plaintiff's family has refused to return the jewelry gifts to the defendant, as well as some her own jewelry; and the defendant's claim for an award of attorneys fees. The resolution regarding the defendant's claim that the plaintiff's family kept her jewelry is not difficult. The plaintiff admits that the defendant was given approximately one kilogram of gold jewelry that was valued at approximately $40,000. The defendant testified that when she moved into her mother-in-law's home, she was told to give all of her jewelry to her mother-in-law for safe keeping and that when she left, she did not get the jewelry returned to her. That included the jewelry she brought to the marriage other than the gold she received as gifts. The plaintiff testified that he makes no claim to any of the jewelry, and is not seeking to keep it. There is no dispute on this issue.
Next, in addition to her request for alimony and real property, the plaintiff seeks legal fees in the amount of $10,000. This issue deserves special attention under the rather unique circumstances of this case. With the defendant being a resident of India and unable to obtain a visa to travel to Connecticut for any court appearances, the court allowed her some leeway in the pretrial proceedings. For example, the defendant, who was initially a self-represented party, was allowed to participate in status conferences by telephone, and did so at her own expense. For the trial itself, however, the court could not accommodate the defendant's request for a trial via video conference without the defendant having an attorney present at the trial. The defendant hired local counsel and, with that in place, the court agreed to allow her to participate by video conference. Shortly before the trial, some sort of dispute arose between the defendant and her counsel of record. As a result the defendant filed a pro se appearance in lieu of her attorney. This was done without the knowledge or approval of the court. When this change was brought to the attention of the court, the court immediately vacated the " in lieu" appearance and reinstated the appearance of the defendant's attorney pursuant to Practice Book § 3-9(e). Fortunately, the defendant and her attorney resolved their disagreement, and the matter went forward without delay or dispute.
It would not be practical--or perhaps even possible--to attempt to try a contested case without having someone in the court who could participate physically. For example, how could the defendant offer an exhibit that was not pre-marked if she was not physically in the courtroom?
Practice Book § 3-9(e) provides in relevant part " [N]o attorney shall withdraw his or her appearance after it has been entered upon the record of the court without the leave of the court."
Given the fact that the trial could not have proceeded in a timely manner without the defendant being represented, there was a clear benefit to both the plaintiff and the defendant in having counsel for the defendant. Since the defendant is currently without funds to pay for such representation, it would be fair and equitable for the plaintiff to make a contribution to the cost of that representation pursuant to General Statutes § 46b-62(a). See Adamo v. Adamo, 123 Conn.App. 38, 53, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d 830 (2010) (courts award attorneys fees in divorce cases so as to not deprive a party of their rights due to lack of funds).
Section 46b-62(a) provides in relevant part: " [T]he court may order either spouse . . . to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82."
" It is axiomatic that . . . the determination of reasonableness of attorneys fees appropriately takes into consideration a range of factors, " and it is clearly within the discretion of the trial court, to make a finding as to the reasonableness of the fee being sought. Esposito v. Esposito, 71 Conn.App. 744, 749, 804 A.2d 846 (2002). Moreover, " courts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorneys fees, " and is not required to hold an evidentiary hearing. Id., 747-48. Counsel for the defendant filed an affidavit of fees (#128.00) with the court in which her fees not including the actual trial amounted to $8,557.89. Her hourly rate was cited at $350 per hour, which is not unreasonable for an attorney of her experience. The trial was completed in one full day so calculating another seven (7) hours at her hourly rate would amount to $2,450, totaling $11,007.89. The court finds this sum to be reasonable, and the court will grant the defendant's request for $10,000 of this amount.
The court makes the following findings of fact in consideration of the testimony offered by the witnesses, including the observations by the court of each person's demeanor while testifying, and the exhibits offered to the court in light of the statutory criteria as explained above, and elaborated on by our case law:
A. The court has jurisdiction;
B. The statutory stays have expired and the court is free to enter judgment;
C. The allegations of the complaint have been proven;
D. The allegations of fault as pled in the cross complaint have not been proven;
E. Neither party bears a greater portion of fault for the breakdown of the marriage;
F. Both parties are capable of supporting themselves, having the education and employability necessary to achieve that state;
G. The gold jewelry given to the defendant as an engagement/marriage gift by the plaintiff and his family is the property of the defendant;
H. All of the plaintiff's assets are premarital, and the defendant has not contributed in any way to their acquisition or maintenance; and
I. The legal fees sought by counsel for the defendant in the amount of $11,007 are fair and reasonable in light of the experience and skill of the attorney as well as the complexity of the case.
In accordance with the factual findings above, the court hereby
ORDERS
I. The marriage of the parties is dissolved;
II. No alimony is awarded to either party;
III. The plaintiff shall own and possess free and clear of any claim by the defendant of all assets both real property and personal as set forth on his financial affidavit filed in connection with this matter;
IV. The defendant shall own and possess free and clear of any claim by the plaintiff of the gold jewelry given to her in conjunction with her marriage to the plaintiff, and the plaintiff shall make all reasonable efforts to assure that such jewelry is returned to the defendant if it has not already been returned;
V. The defendant shall own and possess free and clear of any claim by the plaintiff of all assets both real property and personal as set forth on her financial affidavit filed in connection with this matter;
VI. Each party shall be solely responsible for their own debts and liabilities as set forth on their respective financial affidavits except that the plaintiff shall contribute to the defendant's attorney the sum of $10,000 as a contribution to the defendant's legal fees;
A. Said payment shall be made directly to the defendant's attorney and made payable to her through the offices of his attorney; and
B. Said payment shall be made in full no later than Friday December 18, 2015;
C. Said payment shall not be construed as alimony paid by the plaintiff or received by the defendant.
Adelman, J.