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Mares v. Mares

Connecticut Superior Court Judicial District of New Haven at New Haven
Oct 10, 2006
2006 Ct. Sup. 18382 (Conn. Super. Ct. 2006)

Opinion

No. FA-02 0459247S

October 10, 2006


MEMORANDUM OF DECISION


By complaint of January 2, 2002, the plaintiff, Alvin Mares, initiated this action seeking, inter alia, a dissolution of his marriage to the defendant, Wen Liu Mares, on the ground of irretrievable breakdown. The defendant was duly served; the plaintiff has resided in the State of Connecticut for at least one year prior to the filing of the complaint; and the Court has jurisdiction. The trial in this matter began on September 27, 2004 and did not conclude until May 8, 2006, with 20 scheduled trial dates. Several of the trial dates were allocated to the issue of the relocation of the defendant and children, which came up during the pendency of the proceedings. The parties were given until June 12, 2006 to submit briefs to the Court. The plaintiff was represented by Attorney Joseph Chiarelli from the filing of the dissolution action until December 2005. Plaintiff continued thereafter pro se. The defendant was represented from time of filing until July 2003 by Attorney Maureen Murphy; then by Attorney Noah Eisenhandler until June 2004. Defendant proceeded pro se thereafter until the conclusion of the proceedings. Attorney Thomas Esposito was appointed by the Court as Guardian ad Litem for the children on May 8, 2003.

There were at least 112 motions filed in this case. Over 141 exhibits were offered at trial. The mounds of paper in this case were often confusing, duplicative and sometimes inconsistent. The Court heard testimony from the plaintiff, defendant and seventeen other witnesses, some multiple times. The court reviewed and considered the exhibits, sworn financial affidavits, claims for relief, proposed orders and closing arguments. The court has considered carefully the statutory criteria set forth, inter alia, in General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62, as well as the applicable case law in reaching the decisions reflected in the orders that issue in this decision.

The parties were married on August 5, 1995 in Los Angeles, California. They separated on December 1, 2001. The parties have two minor child issue of their marriage, Amanda Liu Mares, born February 2, 1997 and Aaron Liu Mares, born October 10, 1998. No other children have been born to the wife since the date of the marriage; and wife is not pregnant. The parties have not been the recipients of any public assistance from the State of Connecticut or any of its municipalities during the course of the marriage. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation and judgment will enter dissolving the marriage on this ground.

The plaintiff, Alvin Mares was born in Connecticut, is 37 years old, and in good health. Dr. Mares has two Masters degrees and a PhD in the field of social work. When the plaintiff and defendant married, the plaintiff was a student working on his degrees and the plaintiff was employed full-time. As of the last date of trial, the plaintiff had relocated to Pennsylvania and was working approximately fifteen hours per week. Prior to that he was employed at the Veteran's Medical Center in West Haven, CT (VA) as Project Director/TEPS, and was earning at one point a gross yearly salary of $95,368. Exhibit 7. His financial affidavit dated March 13, 2006 indicates that his status at the VA Medical Center had changed near the end of his employment there to "Contract Worker," and he was earning a gross yearly salary of $45,760. The Court could find from the Social Security records, financial affidavits and other documents offered that the plaintiff earned approximately the following from various sources, e.g., part-time employment, grants, stipends, etc:

1995 $19,655

$10,000.00 stipend from the University of California for the academic year 1995-96

1996 $1,894 1997 $2,463

$7,780 from Greater Los Angeles Health Care System for the period 7/28/97 to 4/29/98

1998 $4,190 1999 $10,135 2000 $35,284 2001 ?

2002 $57,471 (financial affidavit dated 2/14/02 shows a gross yearly salary of $61,464)

2003 $69,733 2004 $79,768

The parties did not acquire any real estate while together. Since the filing of this action, the plaintiff has purchased two properties in East Haven. The property located at 38 Stevens St., East Haven is valued at $160,627; and the property located at 89 High St., East Haven is valued at $224,786. The plaintiff's financial affidavit dated March 13, 2006 indicates that he receives $719 per week gross income from these properties. The defendant is not making any claim to these properties, but wishes them to be considered in making any decisions regarding the plaintiff's earnings or distribution of property.

The defendant, Dr. Wen Liu Mares was born in China, is 42 years old, and in good health. She has a PhD in epidemiology. Dr. Liu Mares came to the United States in 1993. She lived in California with her husband and worked full-time while her husband was working on getting his degrees. Her mother lived with the couple when they lived in California and took care of the babies while defendant was working and plaintiff was in school. The husband moved to Connecticut in August 2000 and the wife and children followed in December 2000. She began working part-time as a "casual employee" from March 2001 to November 2001 at Yale University. She was also employed at the Veteran's Administration until July 31, 2003. From July 31, 2003 to December 6, 2004 she was unemployed. On December 6, 2004 she moved to Minnesota to take a job at the Mayo Clinic. She currently earns a gross yearly salary of $79,768. The Court could find from the Social Security records, financial affidavits and other documents offered that the defendant earned approximately the following:

1994 $12,307 1995 $33,571 1996 $35,786 1997 $35,084 1998 $35,519 1999 $32,119 2000 $28,185 2001 $18,006 2002 $18,493

2003 January to July $25,260; unemployed from July 31, 2003 to December 6, 2004.

The breakdown of a marriage is a disturbing and often complex matter; and rarely is it the case that it is 100% the fault of one party. The plaintiff and defendant had several problems which lead to the breakdown of this relatively short marriage. They went to marriage counseling for three month to try and resolve marital issues. The husband testified that his wife was very inflexible and believes she is always right; and would have temper flares and go into rages, screaming and yelling if he disagreed with her or she didn't get her way. He gave an example of an incident shortly after the separation, when during one of his visitations with the children, she insisted on coming over to his apartment to see the children. When he said no, she banged on his door for about twenty minutes until she broke the hinges off the door, and stormed into the apartment. He described her as very secretive and very hard to communicate with over important issues which they should be discussing as a family. This was also noted by the Court in that it was extremely difficult for the Court and plaintiff's counsel to get needed information from the defendant. Although, plaintiff's counsel could by no means be described as easy to get along with, or one who engenders a spirit of cooperation.

The defendant is a bit unorganized and has a little trouble keeping things in order, being places and doing things on time, etc. On the other hand, the plaintiff is over-organized, sometimes to the point of being obsessive and it was easy to see how his personality would drive this defendant over the edge. The Court believes that both parties are good people with good intentions, who both love their children. However, as with many failing marriages, the personality differences became bigger than life and totally unbearable for both parties.

The plaintiff and defendant have several disputes regarding the use of funds before and after the filing of the divorce.

1. Plaintiff withdrew a total of $16,500 from an account in the name of both parties to pay attorneys fees. Defendant withdrew $3,600 from the same account to pay attorneys fees. Exhibit 60. The plaintiff claims, however, that this was her account which she had before the marriage, into which only she put funds; and that she added his name to the account after they married. This was not disputed.

2. The defendant sent $14,000 to her mother in China in November 2001, prior to the filing of the divorce, without telling the plaintiff. The defendant testified that she and plaintiff had agreed to pay her mother for taking care of their children when they were babies. Plaintiff denies any such agreement. However, the Hon. Gruendel, in his Memorandum of Decision dated September 18, 2002, stated "The payment was made without the husband's direct knowledge, although he had agreed that his mother in law should receive compensation for the assistance she rendered at a time when both parties were trying to earn a living and/or complete their educations."

With regard to the funds discussed above, the plaintiff expended $16,500 and the defendant expended $17,600. In light of the claims made by both parties regarding whose money it was, whether one agreed or not, or was informed regarding the use of the funds, the Court will enter no orders regarding any reimbursement for these funds to either party. The plaintiff and defendant have harassed each for nearly five years over every minute financial detail. This marriage is being dissolved and they need to move on. Plaintiff's Motion for Contempt dated September 24, 2004 is denied.

A major issue is the disposition of the defendant's pension/retirement accounts. The plaintiff in his Proposed Orders and testimony has calculated that he should be awarded funds from the defendant's pension/retirement accounts as part of an equal distribution of marital assets. Exhibit 108. The defendant objects. As stated previously, the wife worked full-time when the parties married, and the husband was working on getting his degrees and bringing in minimal amounts of income from various sources. The plaintiff had no retirement account with any employer. As a casual employee with Yale University, the defendant was not eligible for benefits of any kind and made no payments into any retirement account. At the Veteran's Administration Hospital the defendant had a TIAA CREF retirement portfolio. It appears that the following funds went into her accounts:

1994 $590.76 1995 $5,206.18 1996 $7,875.97 1997 $7,103.45 1998 $8,635.98 1999 $7,447.91 2000 $7,045.95

As of December 31, 2000 the value of her retirement accounts was $69,802.42; as of December 31, 2001 it was $54,595.10; as of December 31, 2002 it was $44,846.42; as of December 31, 2003 it was $57,054.58; as of June 30, 2004, it was $58,677.04. The plaintiff and her employer are the only ones who contributed to this portfolio.

The defendant also contributed to an educational account for each minor child in 1998 and 1999. She contributed $1,000 to Aaron's account and later withdrew the funds. As of June 30, 2004 the balance in that account was $2.32. She contributed $1,500 to Amanda's account and later withdrew it. As of June 30, 2004 the balance in that account was $2.68.

The plaintiff's pension began when he began full-time employment in 2000. Prior to that time the defendant wife contributed $2,000 per year into a retirement fund for her husband for the years 1995 to 2000. Plaintiff's financial affidavit dated February 14, 2002 shows that he had $15,623 in a People's Securities Roth IRA and $1,915 in a VA Thrift Savings Plan, for a total of $17,538. From 2000 to 2002 the plaintiff only contributed $3,506 to his retirement plan. Plaintiff testified that when he did contribute, he contributed the minimum acceptable amount of 5%. The defendant testified that she believes that if plaintiff had contributed just 10% to his plan consistently from 2000 to 2006, that including the employer contribution, he could have accumulated approximately $72,000 based on a salary of $80,000.

Further, prior to purchasing the property on High Street in 2006, the plaintiff had $38,000 in his retirement fund. He borrowed $15,000 from the fund and also used his MasterCard to finance part of the down payment and closing costs for the purchase of the property. This left a balance of $23,000 in his retirement account. He neither informed nor sought the consent of the defendant to withdraw the funds from his retirement account or encumber the MasterCard account, as provided by the Automatic Orders.

Plaintiff asserts that defendant should be penalized for withdrawing funds from her retirement accounts in violation of the Automatic Orders. On August 31, 2004 the defendant withdrew $1,332.09 from her IRA and $29,914.43 from her GSRA account. At that time the defendant had been unemployed since July 31, 2003, and she and the two children were basically living off of $249 per week in child support. The Automatic Orders provide that "neither party shall sell, transfer, encumber . . . or in any way dispose of, without the consent of the other party in writing, or an order of the court, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorney fees in connection with this action." The defendant and the children were, at that point clearly in need of funds to live on.

Both parties withdrew funds from bank accounts to pay for their attorneys fees, which is allowed under the Automatic Orders. The plaintiff disposed of money in his retirement account without the knowledge or consent of the defendant or the Court to purchase real estate, which does not fall within any exception to the Automatic Orders. The defendant sent $14,000 to her mother prior to the Automatic Orders going into effect. The defendant withdrew funds from her retirement account at a time when she had been without any source of income for over a year. It would appear that the plaintiff is the one who could be found to be in violation of the Automatic Orders. Nonetheless, as stated previously, the plaintiff's Motion for Contempt is denied and the Court will not enter any orders for contempt against the plaintiff for his actions.

However, the defendant's pension/retirement fund shall be awarded solely to her for the following reasons:

She was the primary sources of support for the family from 1995 to 2000 when the plaintiff secured full-time employment.

She came into the marriage with a pension fund and continued to contribute to her fund at the maximum rate.

She paid $2,000 per year into a retirement fund for the plaintiff from 1995 to 2000.

The plaintiff from 2000 to 2006 had amassed only $38,000 in his fund because he was making either no contributions or the minimum allowed.

The plaintiff reduced the little funds he did have in his retirement plan to finance the purchase of real estate without the consent of the defendant.

The plaintiff is being awarded sole possession of the real estate which has a total value of $385,413, and is income producing property.

In 2000 the defendant wife claimed both children on her income tax filing. In 2001 she only declared Aaron, and the plaintiff claimed Amanda. In 2002 she claimed both children again. The plaintiff claimed Amanda in 2002 as he had in 2001. As a result of this mix-up, plaintiff had to file an amended income tax return and suffered penalties. He claimed that defendant did not inform him that she was claiming both children. Given the lack of communication between these parties and the defendant's tendency towards secrecy, the Court does not doubt that is what happened. The plaintiff certainly had no incentive to go through such aggravation with the IRS willingly. Plaintiff is seeking reimbursement from the defendant for overpayment and penalties. Although there was no court order that the parents each claim one child until September 28, 2004, the Court agrees that the defendant should have informed the plaintiff that she intended to claim both children in light of the fact that she had only claimed Aaron the year prior. Defendant is therefore ordered to reimburse the plaintiff $2,670 because of her actions. With regard to the 2003 filing, however, the plaintiff should have taken reasonable steps to ascertain what the defendant intended to do about the 2003 filing (and protect himself) given what happened the year before. Because there was no order regarding the exemptions at that point, the Court will make no orders regarding the 2003 income tax filing.

Child Support

The plaintiff moved out of the marital home on December 2, 2001. He did not pay any child support until the Court entered orders on September 26, 2002 that he pay $209 per week in child support plus $40 per week on arrearage retroactive to March 19, 2002. The Court also ordered plaintiff husband to pay 38% of unreimbursed medical expenses and day care expenses. The Court's rulings were based on the plaintiff's gross weekly salary of $1,148 ($59,696 yearly) and defendant's earning capacity. The defendant wife was unemployed at the time, however, the Court found that she had an earning capacity of $925 per week ($48,100 yearly) and ordered that her share of unreimbursed expenses and work-related day care was 62%.

On January 23, 2003 the Court made a finding that the child support arrearage owed by plaintiff was $4,368.44, and ordered that it be paid at a rate of $40 per week. Plaintiff made arrearage payments in the amount of $3,503.44 between February 14, 2003 and April 26, 2004. Exhibit 11. On May 8, 2003 the Court ordered that plaintiff receive an $864.95 credit towards his child support arrearage. Therefore, as of April 26,2004, the plaintiff's child support arrearage was paid in full. Exhibit 11 also shows that plaintiff was up to date with his current child support payments of $209 per week as of October 1, 2004.

Plaintiff filed a motion seeking a decrease in the amount of his child support order based on his "loss of full-time employment in CT and move to Pittsburgh, PA." First of all, the plaintiff offered no testimony of any serious efforts he made to secure employment anywhere other than in Pennsylvania once he was sure he would be leaving the VA Medical Center. He also testified regarding how the salaries are lower in Pennsylvania and that he would probably not make as much as he had in Connecticut or as defendant makes, etc., etc. However, the plaintiff chose to move to Pennsylvania to be with his girlfriend. Secondly, the plaintiff's child support responsibility shall be based on his earning capacity, as it was with the defendant, not his actual earnings. The Court heard no testimony which would convince it that the plaintiff with his education and experience cannot work a 40-hour week and earn at least as much as the defendant, which as of May 2006 was approximately $80,000 per year gross. The plaintiff also testified that he knew he would be leaving the VA Medical Center as long as eighteen months in advance. The plaintiff's gross yearly earnings as of September 28, 2004 were $79,768, and within the last year his earning rose to in excess of $95,000. The Court therefore finds that the plaintiff has an earning capacity of at least $80,000. The Court also finds, however, that since the defendant has obtained full-time employment with a substantial increase in salary, that plaintiff's support obligation should be reduced to $200 per week, effective March 13, 2006, the date of filing of his Motion for Modification.

On September 28, 2004, the Court entered orders increasing the plaintiff's child support payments to $244 per week. The Child Support Guidelines relied on for this change indicated that plaintiff was earning a gross yearly salary of $79,768. Child support in the amount of $244 per week for 75 weeks, from October 6, 2004 to March 13 (10), 2006 equals $18,300; and 29 weeks, from March 17, 2006 to October 6, 2006 in the amount of $200 per week equals $5,800. Plaintiff's total child support obligation for the period October 6, 2004 to October 6, 2006 is therefore, $24,100.

On December 2, 2004 the Court ordered that the children were to remain in Connecticut with the plaintiff father while mother went to Minnesota to get settled. It also ordered that plaintiff's child support obligation be temporarily suspended while the children were living with him. On July 1, 2005 the court ordered that the children go to Minnesota to live with their mother, effective August 13/14, 2005. In addition, father is not required to pay child support for the 2005 Christmas break week; and the 2006 spring break week.

The plaintiff has also requested that defendant be ordered to pay him child support for the time the children were with him and the summers and breaks that they will spending with him. He is also seeking an order that defendant pay a share of the children's extra-curricular activities while they are with him during the summers. Both of these requests are denied. The mother's home is the primary residence for these children. And as such, she is required to pay 62% of their child care expenses and unreimbursed medical and dental costs. All of the expenses that are involved in maintaining the household for the care of the children the majority of the time, i.e., rent/mortgage, school clothes, utilities, health insurance, classes, lessons, etc. don't all go away because the children spend a week or four away from home. In addition, the children had and have several extra-curricular activities, such as swimming, music lessons, Chinese lessons, etc., all of which mother pays without any contribution from father. Yes, the father does have child-related expenses when the children are with him, so he will not be required to pay child support to mother for those periods, but the defendant shall not be required to pay child support to him for those periods. His child support obligation shall therefore be reduced accordingly:

10/6/04 to 3/10/06 @ 244 × 75 weeks $18,300 3/17/06 to 10/6/06 @ 200 × 29 weeks 5,800 _______ $24,100 less 36 weeks 12/2/04 to 8/14/05 $8,784 less 1 week-12/05 244 less 1 week-3/06 244 _______ $9,272 Total due as of 10/6/06 $14,828

Any arrearage owed on this amount shall be paid at the rate of $40 per week, along with current payments of $200 per week.

Travel Expenses

The defendant moved to Minnesota the beginning of December 2004 to take a job after being unable to secure employment in Connecticut and moving to a nationwide search. She had been unemployed since July 31, 2003. Plaintiff made at least ten trips back to Connecticut to make court appearances. Two of those times the court proceedings did not go forward and defendant did not receive notification from plaintiff or his attorney in time not to make a wasted trip.

The plaintiff's employment at the VA Medical Center came to an end September 30, 2005, and he moved to Pennsylvania in April 2006 to be near his girlfriend. The plaintiff traveled to Connecticut on March 13, 2006 for these proceedings which did not go forward because of the defendant's illness. Plaintiff did not receive word until he was almost here. Both parties are seeking reimbursement for expenses for those wasted trips. The Court declines to enter any orders that either party be reimbursed. Both motions are denied.

The plaintiff's request to be reimbursed for his travel expenses to Minnesota to inspect the defendant's apartment is denied.

After considering all the statutory and regulatory criteria for dissolving a marriage and entering orders regarding equitable distribution of property, alimony, support of minor children, orders of life and health insurance, and payment of the children's health expenditures, and the award of counsel fees, together with applicable case law and the evidence presented here, the Court hereby enters the following orders:

ORDERS 1. Dissolution of the Marriage

The marriage of the parties, having broken down irretrievably, is hereby dissolved.

2. Custody and Visitation

The plaintiff and defendant shall have joint legal and physical custody of the minor child, Amanda Mares and Aaron Mares. Their primary residence shall be with their mother. Father shall have parenting time with the children as set forth in the Court's orders entered on July 1, 2005 and September 28, 2004, and at any other times as agreed upon by the parties.

3. Child Support

a. Plaintiff father shall pay child support in the amount of $200 per week; and any arrearage due as calculated herein at a rate of $40 per week.

b. Father shall not be required to pay child support to the mother for the Christmas break week; spring break week; or summer vacation weeks that the minor children spend with him.

c. Mother shall not be required to pay child support to father for the time the children are with him.

d. Except as otherwise provided herein, unreimbursed medical and dental expenses and work-related child care shall remain at 62% from mother and 38% from father, in accordance with the Court's orders of September 28, 2004. The defendant shall provide to the plaintiff documentation in the form of cancelled checks, copies of money orders, invoices, receipts, etc, for her payment of any unreimbursed medical and/or dental expenses and work-related day care she pays for the minor children.

e. The plaintiff shall pay for extra-curricular activities while the children are with him, and the mother shall pay for the children's extra-curricular activities while the children are with her. If the children are required to attend summer camp/school because of father's work schedule, e.g., Mount Lebanon Extended Daycare Program, the cost for same shall be paid 62% by father and 38% by mother.

f. Plaintiff father shall not be required to pay day care costs for the maternal grandmother watching the kids after school.

g. The plaintiff's motion for reimbursement for children's unaccompanied minors airline ticket fee in the amount of $40 is granted since it was the fault of the defendant that the fee was incurred.

h. In accordance with the provisions of the Court's orders dated July 1, 2005, the defendant is required to reimburse the plaintiff for half the cost of the children's airfare to visit their father. Defendant is hereby ordered to pay to the plaintiff the following amounts by no later than November 10, 2006:

354.16 for December 2005 (1/2 of $708.32) 363.20 for March 2006 (1/2 of $726.40) 305.19 for August 2006 (1/2 of $610.38)

4. Health Insurance

a. The mother shall be responsible for insuring that the minor children have health and dental insurance coverage. The father may secure any insurance for the children which he deems necessary to be sure that they are covered when they are with him.

b. The mother shall keep the father informed of and provide him all documentation regarding the children's medical and dental coverage.

5. Post-Secondary Educational Support

The post-secondary educational expenses for the minor children shall be paid by the parents in accordance with the Stipulation to Judgment entered on September 28, 2004.

6. Dependency Exemption

The mother shall have the dependency exemption for the minor child Aaron Mares, and the father shall have the dependency exemption for the minor child Amanda Mares.

7. Alimony

No alimony awards shall be made.

8. Property Division

a. Except as otherwise provided herein, each party shall keep and own that personal property which is now in his or her name or possession, free and clear of any claim by the other.

b. The plaintiff husband shall have exclusive possession and use of the properties located at 38 Stevens St., East Haven, CT and 89 High St., East Haven, CT.

c. The wife shall have sole ownership of the 1998 Honda and the husband shall have sole ownership of the 1996 Toyota Rav 4. Each party shall be responsible for any expenses associated with the automobiles they keep and shall sign whatever documents are necessary to effectuate any transfer necessitated by this order.

d. The wife shall retain sole ownership all of her pension/retirement accounts and the husband shall retain all of his.

9. Debts and Liabilities

Except as otherwise provided herein, each party shall be responsible for paying his/her own debts and shall hold the other harmless thereon.

10. Income Taxes

The wife shall reimburse the husband $2,670 for expenses he suffered as a result of her claiming both minor children on her 2002 income tax return without informing him of her intention to do so. Said payment shall be made by no later than January 10, 2007.

11. Attorneys Fees and Costs

a. Each party shall be individually responsible for their own attorneys fees. b. Each party shall pay to the GAL, Attorney Thomas Esposito, any balance due him pursuant to the Court's orders entered on May 8, 2006, directing each of them to pay him $1,337. Any balance due shall by paid to Attorney Esposito by November 10, 2006.

12. Execution of Documents

Both parties shall immediately execute any and all documents necessary to implement these orders.

13. Miscellaneous

The Court hereby adopts the Orders entered on September 28, 2004 and July 1, 2006 and incorporates them as part of this Final Judgment.


Summaries of

Mares v. Mares

Connecticut Superior Court Judicial District of New Haven at New Haven
Oct 10, 2006
2006 Ct. Sup. 18382 (Conn. Super. Ct. 2006)
Case details for

Mares v. Mares

Case Details

Full title:ALVIN MARES v. WEN LIU MARES

Court:Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Oct 10, 2006

Citations

2006 Ct. Sup. 18382 (Conn. Super. Ct. 2006)