Opinion
FA166060413S
08-09-2017
Rania Nahlawi v. Mohamad Nahlawi
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Mary E. Sommer, J.
I. INTRODUCTION
This contested action for dissolution of marriage was tried to the court on May 1, 2017 with the assistance of an Arabic interpreter. The plaintiff and the defendant were married on January 30, 1995 in Bridgeport, Connecticut. The parties have both lived in this state for one year prior to filing the complaint. This court has jurisdiction. The state of Connecticut provides HUSKY medical benefits to the parties and their children. The state has not filed proposed orders. Neither party is receiving or has received any other state or local financial assistance.
The parties have four children issue of their marriage. All four reside with the plaintiff. There are two children over the age of eighteen and under the age of twenty-three Reem (11/20/95) and Issam (1/5/97). There are also two children who are minors Osama (8/1/01) and Tameem (1/23/05). The parties have no other children together. The plaintiff is not pregnant. The court finds the allegations of the complaint to be proven that the marriage of the parties has broken down irretrievably and there is no hope of reconciliation.
II FACTUAL FINDINGS
Background
The parties are of Syrian descent. According to the Syrian culture, their marriage was arranged after two or three formal visits. The defendant husband paid a dowry valued at $5,000 as of the date of the marriage. The plaintiff was approximately eighteen years old when the parties married. She is now 40 years old. She attended high school in Syria and earned a GED from the State of Connecticut in 2012 at Housatonic Community College. Although she has lived in the United States since 1994, her residence in this country was interrupted from 2001 until 2011. As a result, she appears to have limited English proficiency. Throughout the marriage she was the primary caretaker for the children. She testified that the defendant did not want her to work outside the home. In the last six years, she has also helped the defendant at his retail business, Palisade Market, purchasing store supplies at wholesale stores, assisting with inventory records and preparing food on occasion although she did not work on site or receive payment for her services.
The defendant is 52 years old and he also has a high school degree from Syria. He has operated the Palisade Market in Bridgeport for 23 years since April 1994 one year before the date of the parties' marriage. The lease for Palisade Market expires on March 1, 2019. This business has been defendant's sole source of income throughout the marriage. He briefly attempted to invest in a gas station in 2014, but the investment attempt was unsuccessful. At that time he had a large amount of cash which he kept in the home. The plaintiff's claim that the defendant keeps significant amounts of cash in the home is credible based on the entirety of the evidence.
Although the parties were married in Bridgeport in 1995, the defendant decided that the plaintiff should move to Syria with the children in 2001 because he did not want them growing up in the United States. The plaintiff and the children remained in Syria for about ten years until they left to avoid the current conflict in April 2011. During that ten-year period of time, the defendant would visit his family in Syria every 6-8 weeks staying 3-4 weeks each time.
The plaintiff returned to the United States with the children on April 28, 2011 when war broke out in Syria. The defendant vacated the marital home on August 12, 2016. Throughout the marriage the defendant has worked hard to operate the Palisade Market which is located in a low income high crime area in Bridgeport. According to the defendant there have been eight armed robbery incidents at the store with two fatalities. There have also been ten break ins in which the cash register, ATM machine and merchandise were stolen. He suffers from high blood pressure, elevated cholesterol and back pain. He lives in fear of violence due to the dangerous location of the market. Although defendant qualifies for subsidized housing under Section 8 and fuel assistance he has struggled to provide for his family. The parties' eldest child Reem is a student at Central Connecticut State University. Defendant's mother lived with the parties until she moved out two and a half years ago. Since then, the defendant continues to support his mother along with the parties' two adult children in addition to the plaintiff. For the last year the defendant has borrowed money from friends to make ends meet. The parties receive food stamps and cash assistance.
The plaintiff lives with the children in a rented residence in Trumbull and would like to remain there in order for the children to continue to be enrolled in the Trumbull school system. The parties agree that continued residence in Trumbull would benefit the children allowing them to remain in the Trumbull school system. Continued residence in Trumbull would require the plaintiff to relocate to a more reasonably priced rental.
The defendant vacated the marital home on August 12, 2016. The precipitating causes of the marital breakdown were an argument between the plaintiff and the defendant over a dinner party which she held in the home where she and the guests smoked hookah in the presence of the children and the plaintiff's spending habits. It was also apparent that money had been an issue for some time and that tension over finances had been building between the couple for at least three years. Defendant had a practice of leaving notes for the plaintiff criticizing her cleaning, cooking and laundry rather than discuss these issues directly. Defendant also displayed a somewhat controlling approach to the marital relationship, testifying with respect to his demands that plaintiff perform household tasks, testifying, " I gave her four warnings." He also complained that she had stopped cooking and cleaning the house. Plaintiff testified that she was not able to do these household tasks due to pain from stomach surgery. According to the plaintiff, the defendant told her that he was divorcing her and that as a result they considered themselves to be divorced at that moment based on the custom and practice of their religion. Both parties agree that the marriage has broken down irretrievably and they are seeking a civil divorce under the laws of this state.
The parties presented conflicting testimony regarding the defendant's income and no evidence regarding actual revenues or the value of the business. The plaintiff claims that the defendant regularly accepted cash from customers which he did not always record and that he paid employees over the years in cash. As a result, she claims that his income is higher than the income which he disclosed on his financial affidavit. A former employee, Allen Khouja, who worked part time at the Palisade Market in 1997, testified in support of the plaintiff's claims regarding defendant's practice of running a cash business that he observed this practice while he was employed by the defendant at the store. The defendant's business was also audited by the Department of Revenue Services and he was required to pay approximately $36,000 in tax obligations and penalties. Based on the credible evidence, it is reasonable to conclude that the defendant has accepted some cash income and has likewise paid at least some employees over the years in cash. However, it is not possible to reasonably determine the amount of either cash item or the duration of the defendant's business practice.
Dowry
The parties also presented conflicting testimony over the issue of property rights relating to the dowry. The plaintiff is seeking an order of this court that the defendant make payment to her of $30,000 as a property settlement from the funds which she claims the defendant has held for the sale of his portion of a gas station and as inclusive of plaintiff's dowry. As noted above, several years ago, the defendant unsuccessfully attempted to invest in a gas station. When the money for the investment was returned to him, he kept it in cash in the home. With respect to the dowry, the defendant claims that at the time of the parties' marriage he agreed to pay dowry of 150, 000 Syrian pounds and that the parties also agreed that he would pay 100, 000 Syrian pounds as a final property settlement at the time of divorce. According to Jamal Homsi, a Syrian attorney who testified at the trial, the value of the dowry was approximately five thousand dollars at the time of the marriage. Based on the current exchange rate of 516.26 Syrian pounds to the U.S. dollar, the value of the 100, 000 Syrian pound property settlement is now approximately $200.00.
Having carefully considered the evidence in the case the court finds that the marriage of the parties has broken down irretrievably. The marriage of the parties is dissolved. Based on the factors set forth in Connecticut General Statute 46b-82 et seq., the court hereby enters the following orders:
1. Custody
The parties agreed to a parenting plan which was made an order of the court on December 8, 2016. The court finds the plan to be in the best interests of the children and incorporates the plan as orders of the judgment in this case. The parties shall share joint legal custody of the minor children who shall reside with the mother. The father shall have reasonable and flexible visitation with the children as can be arranged by and between the parties. Neither parent may take the children outside the state of Connecticut without the agreement of the other parent or order of the court.
2. Child Support
The defendant father shall pay child support in the amount of $116.00 per week according to the state of Connecticut's child support guidelines presumptive weekly child support calculations.
3. Health Insurance and Healthcare Expenses
The children shall continue to receive medical benefits through the state of Connecticut HUSKY insurance program for as long as they qualify. The parties shall be responsible for the unreimbursed medical and dental expenses of the minor children 35% plaintiff, 65% defendant in accordance with the state of Connecticut child support guidelines.
4. Extracurricular Activities
The parties shall share the cost of school and extracurricular activities for the children as agreed by the parties. Neither party may register or enroll a child in an extracurricular activity without consulting the other parent in advance.
5. Relocation
The plaintiff may not relocate with the children outside the state of Connecticut without the consent of the defendant or court order. Upon any motion for relocation by the plaintiff, primary consideration shall be given to the remaining minor children completing their high school education without interruption in the United States of America.
6. Alimony
There is no absolute right to alimony. Awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court. Weinstein v. Weinstein, 18 Conn.App. 622, 637, 561 A.2d 443 (1989). The purpose of alimony is to provide continuing support. General Statutes § 46b-37 makes it the " joint duty of each spouse to support his or her family . . ." Febbroriello v. Febbroriello, 21 Conn.App. 200, 206-10, 572 A.2d 1032 (1990).
Pursuant to General Statute § 46b-82 the factors which the court must consider in awarding alimony include length of the marriage; Loughlin v. Loughlin, 280 Conn. 632, 644-45, 910 A.2d 963 (2006); cause of the breakdown; age of parties; health of parties; occupation; amount and sources of income, either actual earned income amount or a court determination of a party's earning capacity; vocational skills; education; employability; estate and needs of parties.
" [R]ehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency." Bornemann v. Bornemann, 245 Conn. 508, 539, 752 A.2d 978 (1998); Mongillo v. Mongillo, 69 Conn.App. 472, 478, 794 A.2d 1054, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002).
" Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency." Roach v. Roach, 20 Conn.App. 500, 506, 568 A.2d 1037 (1990).
" The particular length of time needed for alimony can sometimes be established by predicting when future earnings, based on earning capacity as known at the time of dissolution, will be sufficient for self-sufficiency." Cooley v. Cooley, 32 Conn.App, 152, 165, 628 A.2d 608, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993).
The plaintiff is seeking an order of unallocated alimony and child support in the amount of $3,000.00 per month for twenty years. Alternatively, she asks the court to order that she retain the store and pay the defendant 25% of the net profits for three years as alimony. The court has considered the duration of the marriage, the age and ability of the parties to earn income. Both parties still have considerable time to earn income. They are both reasonably healthy despite some physical complaints. Neither has provided any evidence that medical issues prevent them from working. Despite having been in this country since 1995 and earning a GED, the plaintiff lacks recent work experience or employment-related skills. She has never operated a business and has limited English language proficiency. Although she testified confidently that she believed she was capable of operating the Palisade Market, there is no evidence to support this assertion. The plaintiff's alternate proposal is neither realistic nor reasonable.
The defendant has a working knowledge of English and has operated a retail business in a challenging environment for over twenty years. Despite the challenging of operating such a business, the defendant has managed to provide for his family without income from his spouse. Any continuing financial support to the plaintiff as well as the minor children will depend on the defendant's operation of the Palisade Market or a similar business enterprise. The court's ability to issue appropriate financial orders in this case is hampered by the uncontroverted facts that the defendant has operated a retail cash business for over twenty years, that he has kept large quantities of cash in the home and the resulting absence of reliable evidence as to income and assets. Under the circumstances of this case and based on the above factual findings and consideration of the above statutory factors, the court finds that the plaintiff requires rehabilitative alimony to meet her basic needs.
The defendant shall pay alimony to the plaintiff in the amount of $1,600.00 per month terminable on the death of either party, the remarriage of the plaintiff, her cohabitation pursuant to the provisions of Conn. Gen. Stat. 46b-86(b) or for a period of eight years from the date of dissolution whichever shall first occur. The defendant shall provide to the plaintiff copies of his personal and business tax returns annually at the time he files them for as long as he is obligated to pay alimony.
The defendant shall not receive alimony from the plaintiff.
7. Real Property
The parties have identified three real property parcels located in Syria for distribution by the court. The evidence regarding the value and condition of these properties in Syria which the parties acquired during the marriage is unclear. The parties identified them as follows:
163 Darkhabieh--In 2002, the parties brought this apartment in Damascus, Syria.
3691/20 Masjeb alaksab. The defendant claims that this property is subject to an agreement with his family for occupancy and an $85,000 debt to them. He did not provide any documentary evidence of the agreement or indebtedness.
2088/9 Kafar Batna. In addition to the above properties, the parties also own a summer house outside of Damascus in Syria.
Based on the credible evidence from both sides the court concludes that both factual and equitable grounds support treating the properties as jointly held. The parties dispute the value of all of the Syrian properties. The defendant claims the properties which are located in Damascus are worthless due to their proximity to the conflict. The evidence as to valuation of the properties which the parties submitted was in Syrian pounds which are subject to wide variance. The parties did not provide information such as appraisals, comparable property values, purchase price, encumbrances or current market values on their affidavits which would enable the court to make factual findings as to current property values. Both are seeking orders granting them title to the properties. They acknowledged that due to the ongoing conflict, particularly in the Damascus area, it is not possible to ascertain the current condition of the Damascus properties.
As noted in the court's factual findings, the parties did not provide clear evidence of the value of the Syrian properties or their present condition. At a point in the trial there was a dispute as to whether the buildings still exist or are habitable in light of the last six years of armed conflict. Nonetheless, based on the court's best assessment of the facts as presented and exercising its fundamental equitable authority in matters of property distribution, the court finds the following property distribution to be fair and equitable:
The defendant shall execute all necessary documents by deed or otherwise to transfer one hundred (100%) percent ownership interest in the Syrian Property known as 3691/20 Masjid Aksab to the plaintiff within thirty days of judgment.
The defendant shall retain 163 Darkhabia (the summer house) and 2 Kaifar Batna apartment free from any claim of right from the plaintiff. The plaintiff shall execute all necessary documents by deed or otherwise to transfer one hundred (100%) per cent ownership interest in these two properties to the defendant within thirty days of judgment.
8. Personal Property
The defendant has agreed that the plaintiff may retain the contents of her residence. The parties have disclosed three motor vehicles on their financial affidavits. Plaintiff shall retain the Honda CRV. The defendant will retain the 2011 Volkswagon. The parties shall each be responsible for all costs and expenses relating to the ownership, insurance, taxes and maintenance of their respective vehicles. The parties also own a 2006 Mazda 3 vehicle which is located in Syria. This vehicle shall be sold and the proceeds divided equally. Alternatively, either side may purchase the vehicle for one-half of its value.
9. Bank Accounts
The defendant may retain the business account with Bank of America reflected on his financial affidavit.
10. Gifts
The plaintiff may retain all gifts of jewelry she received, whether from the defendant or members of his family, e.g., for engagement, wedding and birth of children, including her wedding ring.
11. Debts
The defendant shall pay the plaintiff the sum of $6,000.00 in six equal monthly installments toward the credit card debt on her financial affidavit, beginning September 1, 2017. The parties shall otherwise be responsible for their own debts and shall hold each other harmless with respect to their debts. There are no joint debts.
12. Post-secondary Educational Support Orders
The parties represented that had they remained an intact couple, they would have assisted their children with college expenses according to their financial means. At the parties' request, the court shall retain jurisdiction to enter an educational support order pursuant to Conn. Gen. Stat. Sec. 46b-56c.
13. Defendant's Business
The defendant shall retain all title and interest in Palisade Market including the right to income from the business. He shall be solely responsible for all liabilities associated with said business and shall hold the plaintiff harmless for any liabilities or claims related to the business.
Upon sale or transfer of the business, the plaintiff shall be entitled to a complete accounting of the business assets and liabilities including all materials filed with any revenue or tax authorities. The parties shall divide the net sale proceeds equally after satisfaction of all debts and obligations of the business. Any postjudgment debt or obligation incurred by the defendant shall be deducted from his share of the proceeds.
14. Income Tax
For so long as the defendant is the primary source of support for the children, he shall claim the children as dependents for income tax purposes. The parties shall equally divide the proceeds of the income tax refund for the 2016 tax year.
15. Miscellaneous
The defendant has alleged that the parties entered into an alleged marriage agreement, i.e., a prenuptial agreement which they registered in the court of Damascus, Syria. He alleges that in addition to providing for a dowry payment at the time of marriage under Syrian law, the agreement also stated that in the event of dissolution of marriage or divorce, the defendant would be obligated to pay the plaintiff 100, 000 Syrian pounds as a final property settlement. Based on the present rate of exchange, 100, 000 Syrian pounds equals approximately $200.00.
Connecticut's trial courts have typically interpreted religious prenuptial agreements, such as dowries or mahrs, using the same principles used to analyze secular prenuptial agreements. In Light v. Light, Superior Court, judicial district of New Haven, Docket No. 12-4051863-S (December 6, 2012, J. Gould) [55 Conn.L.Rptr. 145, ], the court determined that it had subject matter jurisdiction to enforce the divorcing parties' religious prenuptial agreement. There, the husband argued that the court lacked subject matter jurisdiction to enforce the agreement because it was a religious document not subject to enforcement by a secular court, but rather subject only to the Rabbinical Court (Bet Din). Id. The trial court concluded that even if it was a religious document, it could " apply well-established principles of contract law and Connecticut's Premarital Agreement Act to enforce the agreement made by the parties.' See Peterson v. Sykes-Peterson, 133 Conn.App. 660, 664, 37 A.3d 173, cert. denied, 304 Conn. 928, 42 A.3d 390 (2012) (prenuptial agreements are contracts and are to be construed according to the principles of construction applicable to contracts generally)" Id.
In Bedrick v. Bedrick, 300 Conn. 691, 700, 17 A.3d 17 (2011) the Supreme Court stated, " Prenuptial agreements entered into prior to October 1, 1995 . . . are governed by the common law, which we analyzed in McHugh v. McHugh . . . In McHugh, we explicitly determined that, although a prenuptial agreement is a type of contract and must, therefore, comply with ordinary principles of contract law, the validity of such a contract depends on the circumstances of the particular case . . . Summarizing, we stated: '[Prenuptial] agreements relating to the property of the parties, and more specifically, to the rights of the parties to that property upon the dissolution of the marriage, are generally enforceable where three conditions are satisfied: (1) the contract was validly entered in; (2) its terms do not violate statute or public policy; and (3) the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work injustice." (Citations omitted; internal quotation marks omitted.) To render unenforceable an otherwise valid [prenuptial] agreement, a court must determine: (1) the parties' intent and circumstances when they signed the [prenuptial] agreement; (2) the circumstances of the parties at the time of the dissolution of the marriage; (3) whether those circumstances are 'so far beyond' the contemplation of the parties at the time of execution; and (4) if the circumstances are beyond the parties' initial contemplation, whether enforcement would cause an injustice . . . Absent such unusual circumstances, however, [prenuptial] agreements freely and fairly entered into will be honored and enforced by the courts as written . . . This heavy burden comports with the well settled general principle that [c]ourts of law must allow parties to make their own contracts." (Citation omitted; internal quotation marks omitted.)
The validity of prenuptial contracts in Connecticut is governed, since October 1, 1995, by the Connecticut Premarital Agreement Act. General Statutes § 46b-36a et seq.
In Hage-Sleiman v. Hage-Sleiman, Superior Court, judicial district of Fairfield, Docket No. 104033567 (April 25, 2012, Klatt, J.), the court considered a marital dissolution between two parties who were married in Lebanon but later moved to the United States. During their divorce trial, the wife offered two documents to the court as evidence of a prenuptial agreement a Lebanese document executed at the time of the marriage ceremony as required by Lebanese law, which included a pre-paid dowry and deferred dowry, and a second document entitled " Prenuptial Agreement" that was executed three days after the marriage ceremony. The first document required the wife to be paid a $50,000 deferred dowry, while the second document waived the wife's right to claim alimony following a divorce.
Citing McHugh, the trial court determined that neither document met the criteria for a premarital agreement because they were not prepared as " an agreement between prospective spouses made in contemplation of marriage." Id. The trial court reasoned that " the monetary amounts in Exhibit #1 were simply filled in by the [husband] to pay any sums" and " [t]he second document was signed three days after the marriage . . . [wife] did not know what was contained in the document as she could not read or write English . . . and was not given the opportunity to review and consult with counsel regarding her waiver of property rights." Id.
From these decisions, it can be concluded that there is no mandatory or persuasive authority in our state preventing the court from incorporating the terms of a religious prenuptial agreement, such a dowry, into a divorce judgment, unless the court determines that such an agreement does not comply with the standards required of secular prenuptial agreements. Because the parties' prenuptial agreement in the present action was entered into prior to their marriage January 30, 1995, the standards set forth in McHugh guide the court's analysis.
The parties have failed to provide sufficient evidence for the court to determine whether this court has jurisdiction over the alleged prenuptial property settlement, whether it is a valid or enforceable claim and, if it is valid and enforceable, the value of the claim or asset itself. The court concludes that the defendant has not provided sufficient proof of a claim which is cognizable under the laws of the state for recognition pursuant to the rules of comity and therefore, makes no orders on the alleged Syrian property settlement.
The court hereby dissolves the marriage of the parties and enters judgment in accordance with the above findings and orders.
16. Plaintiff's Name
The court hereby grants the plaintiff's request for restoration of her birth name--Rania Haidar.