Opinion
No. FA 02-04665181
February 25, 2005
MEMORANDUM OF DECISION
Although the defendant in this action for dissolution of marriage claims that the parties never actually married, this court has already, in separate findings and orders on February 18, 2005, found that the parties were indeed lawfully wedded and made other findings necessary to dissolve their marriage on the grounds of irretrievable breakdown. The court also entered orders to assist the parties to retain the full value of the marital home, which is the most valuable marital asset but under a order of foreclosure by sale. The court now sets forth additional findings and orders.
Because a foreclosure sale of the marital home was imminent, the court previously entered orders in order to protect the full value of the parties' equity in the property.
Before making its findings and entering its orders, the court observed the demeanor of the parties and evaluated their credibility. The court carefully considered all of the evidence, including the exhibits and the testimony presented, according to the standards required by law. The court fully considered the statutory criteria for dissolving a marriage and entering orders regarding custody, visitation, child support, alimony, equitable division of property and debt, and counsel fees.
I — JURISDICTIONAL FINDINGS
The court finds that it has jurisdiction over the marriage. One party has resided in Connecticut continually for more than one year before the bringing of this action. The parties were married in West Haven, Connecticut, on March 30, 1997. They have one minor child, Name Osman, who was born on December 7, 1999. The defendant has received financial assistance from the State of Connecticut. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation.
II — DISCUSSION A. Validity of the marriage
At trial the parties disagreed over whether they were ever legally and validly married. The evidence established that on March 30, 1997, they both participated in a wedding ceremony at the West Haven Islamic Center. In accord with their religious customs, the parties were not in the same room, but the plaintiff had a male representative, a "Wali," who stood in for her at the ceremony, which was attended by witnesses and conducted by a sheikh, as permitted under their religious practices. Afterward the plaintiff reasonably believed that she was married to the defendant. They began living together as husband and wife and held themselves out to others as being married. (For example, the defendant put the plaintiff on his health insurance, a task not easily accomplished unless he had listed her as his wife. He later signed a marriage certificate saying that he had married her.) In July, they traveled to the plaintiff's country of origin, Turkey, where they participated in a second wedding ceremony, in which the plaintiff wore the traditional white bridal dress, and after which they celebrated at a reception with many guests and cut a multi-tiered wedding cake. They were unable to obtain a Turkish civil wedding license, however, because the defendant did not have papers documenting his divorce from his second wife. Since the plaintiff's parents wanted to see documentary proof that their daughter was legally married, the parties had blood tests upon their return and then obtained a Connecticut marriage license and certificate, which was signed by each party and an imam, who incorrectly stated on the certificate that the marriage had occurred in November. The plaintiff sent a copy of the Connecticut marriage license to her parents in Turkey, but, not knowing that Connecticut law required it to be filed with municipal authorities, kept it at home until shortly after bringing this action, when she filed it in New Haven.
The plaintiff claimed at trial that the parties had intended and believed the March 1997 ceremony in West Haven to be a wedding, but the defendant asserted that its only purpose had been to allow them to live together as an unmarried couple. He also stated that he did not understand the purpose of the Turkish ceremony, but this testimony was quite unconvincing in view of the photographs entered into evidence that show (i) the plaintiff in a white wedding dress, (ii) the parties jointly cutting a six-tiered wedding cake, (iii) the parties standing next to the cake, facing each other, the plaintiff smiling broadly, each serving the other a piece of cake on a fork, and (iv) various other persons standing next to the parties. These were obviously photos taken in the aftermath of a wedding ceremony.
Under these circumstances, the court finds that the parties intended to marry and were in fact legally and validly married. Their marriage was properly and ceremonially solemnized in accord with the practices of their religion. Although they did not obtain a marriage license until six months later, that certificate stated the incorrect date, and the plaintiff did not file the license until five years later, lack of formal compliance with statutory requirements pertaining to marriage licenses does not void their marriage. Carabetta v. Carabetta, 182 Conn. 344, 438 A.2d 109 (1980) (holding that "a ceremonial marriage contracted without a marriage license is not null and void," id., at 350).
B. Cause of the breakdown
After the wedding in March 1997, the parties first lived in Hamden, until the defendant bought a condominium in West Haven. The condo proved unsatisfactory to him, however, because he had difficulty getting a satellite dish installed, and he sold that residence and used the proceeds to purchase the marital home at 35 Cumley Drive in Hamden. They lived together there until April 2002, when the defendant was arrested after an argument with the plaintiff, and ensuing protective and restraining orders ejected him from the house. He has not seen his daughter since that incident and the plaintiff testified at trial that she did not ever want him to see Name again. The plaintiff claimed at trial that during the April 2002 argument the defendant threw her to the floor, punched her in the chest, and threw their daughter on the ground. The defendant denied striking the plaintiff or pushing his daughter. The plaintiff admitted that defendant had never struck their daughter on any other occasion and did not offer any evidence of other incidents of domestic violence against her own self. The evidence did not establish that this particular incident, whoever's version is deemed more credible, to be the cause of the breakdown of the marriage. The parties had been arguing before this, and it seems more likely, instead, that this incident was simply the culmination of events leading to the breakdown. The court thus does not ascribe fault in the marital breakdown to either party.
C. The parties CT Page 3661
The plaintiff is 45 years old and has lived in the United States since shortly before the parties' marriage. In Turkey she was an art teacher for adolescents, and with two additional years of education could become a teacher in the United States. After the defendant was removed from the home, she went on state financial assistance for her support, but for more than two years the defendant continued to pay for the mortgage on the marital home where she resided with their daughter. Recently the plaintiff has run a small sewing shop, but earned only marginal income there of two hundred dollars a week gross. Since in good health, however, she has the ability and earning capacity to work forty hours a week at minimum wage. The parties' daughter is now of school age, and there was no evidence showing that the plaintiff needs continue at such marginal employment or working less than full-time. Either she should enter the work force full-time or pursue the education and licensing requirements necessary for her to resume teaching.The defendant is also 45 years old and in good health. He works as a parking lot attendant and earns $550 per week gross and $491 per week net. This is his third marriage, and throughout it he regularly sent approximately $300 per month to his second wife in Egypt, for support of his eight-year-old daughter and 21-year-old son from that second marriage living there, pursuant to an agreement he made with his second wife when they became divorced.
D. Custody and Visitation
Although the plaintiff said at trial that she never wanted her daughter to see her father again, after appointment of a guardian ad litem the plaintiff agreed mid-trial to counseling for father and daughter to help reunite them after not seeing each other for the last three years. The defendant does not seek physical custody but does want an order for visitation. It is in the best interest of the minor child for her to reside with her mother, to whom the court awards legal and physical custody. The court enters this decision without prejudice as to any orders regarding legal custody or parenting time. Additional parenting orders will follow after the reunification therapy.
E. Financial Issues
The wife seeks an award of alimony, $100 per week for six years, an order that defendant pay off the entire arrearage on the marital home, and award of title and full equity in the marital home to her. The State of Connecticut has asked for an order that defendant be found to owe an arrearage of $12,444 in child support for the 122 weeks (from May 1, 2002, to September 9, 2004) during which the plaintiff received state financial assistance. The husband asks for award of the marital home and no alimony to either party.
The presumptive support amount is for the defendant to pay child support in the amount of $104 per week, as shown by the attached child support guidelines worksheet. Although the court may consider verified payments made to support a party's dependent child as a deviation criterion; Regs. Conn. State Agencies, § 46b-215a-3(b)(4)(B); there was insufficient evidence here for this court to find that it would be inequitable not to adopt such a deviation. Although the defendant has regularly sent money to his second wife in Egypt for his 8-year-old and 21-year-old children from that marriage, there was insufficient credible evidence as to the amount of regular support provided for the minor daughter. Thus, the court awards current child support in the presumptive amount.
During 104 of the 122 weeks that plaintiff received state financial assistance, the defendant was supporting his wife and daughter by paying the mortgage $356 per month on the marital home though July of 2004. He also paid for the electricity, which averages $14 per month, cable television, and certain other utility bills for the marital home during that time. Thus, during the time that the state claims an arrearage, he provided support to plaintiff in the amount of $9,034.88, an amount the court deducts from the state's claimed arrearage. The court finds that he owes an arrearage in unpaid support.
The wife is now under-employed. With her daughter now of school age, there is no reason she cannot work full-time. Her sewing shop does not provide enough income to meet her needs or those of her child. The husband's income is not sufficient to meet the needs of two households. If the plaintiff obtained certification to teach art in the United States, moreover, she would probably earn significantly more than now and be better able to meet her needs and those of Name.
The most significant financial asset of the marriage is the marital home, which is in foreclosure. On November 15, 2004, the foreclosure court, Pinkus, J., found that it is worth $158,000 and had debt and encumbrances then of approximately $56,000. This court takes judicial notice, however, that a foreclosure sale may not net the full fair market value of real property. See, e.g., New England Savings Lank v. Lopez, 227 Conn. 270, 271ff, 630 A.2d 1010 (1993) (noting that and explaining why "the usual notion of fair market value is inconsistent with the notion of a foreclosure sale"). Thus, the court finds it likely that the parties' actual equity in the marital home, were it to be sold in an arms' length transaction on the open real estate market, would net them more than the $102,000 equity found by the foreclosure court. The parties believe that the total amount necessary to redeem the equity and reinstate the mortgage is between $10,000 and $15,000.
The plaintiff listed no assets on her financial affidavit other than half interest in the marital home, but at trial she acknowledged that she also has a pending personal injury case, which is also marital property. Since neither party provided any evidence about the potential value of her claim, the court is unable to specify a value for it. In addition to the marital home, which presently is solely in defendant's name, he has a bank account at Citizens' Bank, listed on his financial affidavit; and at trial he acknowledged also having bank accounts at Hudson Bank and First Union Bank. All three of those bank accounts are also marital property, but the value of the two not listed on his financial affidavit is unknown. The defendant's limited income, however, does not provide him with sufficient means to support himself and also to finance his annual trips to Mecca, his regular gifts to relatives overseas, and his support he pays for his two children in Egypt. The court thus finds it likely that he has access to other funds than disclosed on his financial affidavit. He participates in a voluntary fraternal society that he called a "Jamaria," a group of Muslim men who pool their funds to help each other out. The group recently came up with $5,000 to post bail bond for one of the group, and, in the year 2000, it loaned the defendant $10,000 for him to use in the purchase of the marital home. The defendant testified that he could obtain the $15,000 necessary to reinstate the mortgage from this group but would have to repay the money.
The plaintiff's claim for alimony obviously rests on the traditional notion that a person supported during marriage by a spouse has a right to continuing support after the marriage dissolves. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982) ("the purpose of alimony is to meet one's duty of support"); Crowley v. Crowley, 46 Conn.App. 87, 98, CT Page 3664 699 A.2d 1029 (1997) (alimony "is damages to compensate for loss of marital support and maintenance"). In General Statutes § 46b-51(a), the legislature has specified that a court must consider the following factors "in determining whether alimony shall be awarded, and the duration and amount of the award:"
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, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.
"While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). The weight to be placed on each factor depends on the circumstances of each case. Debowsky v. Debowsky, 12 Conn.App. 525, 526-27, 532 A.2d 591 (1987). Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). The court is not obligated to make express findings on each factor or to give equal weight to each of the specified criteria; nor is any single criterion preferred over the others. Graham v. Graham, 25 Conn.App. 41, 45, 592 A.2d 424 (1991). Moreover, the statutory factors for awarding alimony or assigning property are not exclusive, and the court may consider other equitable factors in either. Smith v. Smith, 249 Conn. 265, 284, 752 A.2d 1023 (1999). Here the court has fully considered all of the statutory factors in light of the evidence offered at trial.
In its award of alimony, the court may also consider the court's distribution of property. The statutory criteria for property distributions in § 46b-81 are similar to those for alimony, except that for property distributions the law omits "the desirability of . . . securing employment" as a factor and adds "the opportunity of each for future acquisition of capital assets and income" and "the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." Whereas alimony "is based primarily upon a continuing duty to support"; Blake v. Blake, 211 Conn. 485, 498, 560 A.2d 396 (1989); "the purpose of property division is to unscramble the ownership of property, giving each spouse what is equitably his." Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982).
In the present case, the wife needs time and funds to get on her own feet financially and to support herself and Name in the interim. Since she has been a teacher in the past and only needs two years of schooling to be eligible to do so again in this country, that would seem to be a logical career option. The court's orders are intended to aid plaintiff to support herself and the child while she finds a career where she can support herself, in teaching or elsewhere.
The plaintiff has also requested an award of $2,500 in counsel fees. Pursuant to General Statutes § 46b-62, the court has authority to order payment of counsel fees after consideration of the parties' respective abilities and the criteria set forth in General Statutes § 46b-82. Moreover, the court must take care that its determination of this question does not substantially undermine its other financial orders.
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988). Both parties will have sufficient liquid financial resources, after sale of the marital home, to pay their own attorneys. Taking into consideration all the statutory factors mandated by § 46b-62, as elucidated by the Appellate Court in Miller v. Miller, the court awards no counsel fees to either party.
III — ORDERS
In entering the following orders, along with those previously entered, the court has fully considered all the statutory factors set forth in General Statutes § 46b-56 as to custody and visitation, § 46b-81(c) as to equitable distribution of property, § 46b-82 as to alimony, §§ 46b-56c and 46b-84 as to support of a minor child, and § 46b-215a-1 et seq., Regs. Conn. State Agencies, as to child support, together with applicable case law and the evidence presented here.
1. Defendant shall pay plaintiff alimony of $25 per week, terminable upon death of either party if wife remarries or cohabits with another as the term "cohabitation" is defined in the general statutes. No alimony is awarded to the plaintiff.
2. Defendant shall pay current child support of $104 per week, $21 per week to the State of Connecticut toward the child support arrearage of $3,409.12 until that amount is fully paid, and 47 per cent of unreimbursed qualifying child care expenses necessary for plaintiff to work and the same percentage of unreimbursed medical expenses for Name that exceed one hundred dollars a year (which shall be plaintiff's responsibility).
3. The parties shall place and keep Name on health insurance that is available at a reasonable cost through their places of employment.
4. The court retains jurisdiction to enter an educational support order under General Statutes § 46b-56c upon written motion or petition of either party.
5. Plaintiff shall receive two-thirds and the defendant one-third interest in the net equity in the marital home, which the court orders to be sold immediately. Plaintiff shall select a listing agent, who shall list the property for a reasonable selling price. The parties shall sell the property for any bona fide offer within three per cent of the listing price. The court retains jurisdiction over marketing and sale of the marital home.
6. Defendant is awarded the two motor vehicles listed on his financial affidavit.
7. The court retains jurisdiction to determine distribution of the contents of the marital home. The parties are ordered to see family relations to attempt to mediate this issue first. If they are unsuccessful in resolving their claims, the court will decide.
8. All other property in the name of each party shall continue to be owned by that party.
At trial, as noted above, each party acknowledged having assets not listed on their financial affidavit. For plaintiff, it was the pending personal injury lawsuit; for defendant, the First Union and Hudson bank account. Neither party's proposed orders filed before trial had sought award of these specific assets. The plaintiff had been aware of the two bank accounts, however, as she obtained and introduced documentary evidence about them in the form of bank statements from 2000 to 2002. After the testimony about these unlisted assets, neither party amended its proposed orders seeking a transfer of the asset; nor did either party urge the court to consider the value of these particular assets in its division of property or award of alimony.
9. To effectuate the ability of the parties to sell the property, the court has previously ordered, by operation of law pursuant to General Statutes § 46b-81, an immediate transfer from defendant to plaintiff of one-half interest in the marital home.
10. The parties shall each be responsible for half the fee of the guardian ad litem and half the debt on the marital home (including the arrearage in mortgage, real property taxes, and homeowner's insurance and costs, attorneys fees, and expenses awarded by the court to the foreclosing party). Plaintiff shall be responsible for the Visa credit card debt listed on her most recent financial affidavit. Defendant shall be responsible for the Yale New Haven Hospital and Yale emergency room debts listed on plaintiff's financial affidavit and for the CitiBank Visa credit card debt listed on his most recent financial affidavit.
11. Plaintiff is ordered immediately to make all necessary payments to reinstate the mortgage.
12. Until closing on the marital home, the defendant shall pay the mortgage, real property taxes, and homeowner's insurance, and those payments will be credited toward his alimony and current child support obligation until then.
13. Payments made by defendant after February 22, 2005, toward plaintiff's share of joint debt or exceeding his alimony and current child support obligation under this court's orders will be treated as a credit to him, paid to him from the proceeds of the sale and deducted from the net proceeds before the parties receive their respective shares of the equity in the marital home.
14. The court retains jurisdiction to determine the fee due the GAL. When a contract for sale of the marital home has been signed, the parties shall notify the GAL of the sale price and closing date, and the GAL shall submit an affidavit of fees and services to the court for review and approval. Any fees owed the GAL by either party and not paid by the date of the closing shall be withheld from that party's share of the proceeds and paid directly by the closing attorney to the GAL.
15. Each party shall obtain life insurance in an amount of $100,000, with the child as an irrevocable beneficiary, and maintain such insurance until Name turns age 23.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT