ABUNAW v. ABUNAW, No. TTD FA06 4004417-S (Aug. 2, 2006)


JOYCE ABUNAW v. DAVID ABUNAW.

2006 Ct. Sup. 13982
No. TTD FA06 4004417-SConnecticut Superior Court Judicial District of Tolland at Rockville
August 2, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
PATRICIA A. SWORDS, JUDGE.

By complaint of February 7, 2006, Joyce Abunaw (Plaintiff or Wife), initiated this action seeking, inter alia, a dissolution of her marriage to David Abunaw (Defendant or Husband), on the ground of irretrievable breakdown. By counterclaim of June 12, 2006, Husband seeks a dissolution of marriage and other relief.[1] Each party has filed an Answer admitting most of the allegations of the other’s complaint. The court will enter judgment upon the plaintiff’s complaint.

The court heard testimony over the course of one day in August 2006. Plaintiff’s counsel has filed proposed orders[2] and the court heard oral argument. In addition, the court reviewed and considered the exhibits, sworn financial affidavits, claims for relief, proposed orders and closing arguments.

The sole witness for each side was the party. The court observed the demeanor of, and evaluated the testimony and credibility of, each witness. The court finds Wife to be generally credible, and Husband to be credible in part and not credible in part.

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.

Plaintiff, whose birth name was Joyce Ashuntantang, and Defendant were married on November 25, 1994, in New York, New York. Plaintiff has resided in Connecticut continuously for more than twelve months prior to instituting this action. The court has jurisdiction and all statutory stays have expired. CT Page 13983 This is the first marriage for Wife and the second marriage for Husband. The parties have two minor children issue of this marriage: David Abunaw, III, born June 19, 1995 and Tee Abunaw, born December 22, 1999. No other children have been born to Wife since the date of the marriage. Neither party has completed the parenting education program.

Wife is now 40 years of age and was 28 at the time of the marriage. Husband is now 47 years of age and was 35 at the time of the marriage. The parties are in apparent good health.[3]

Wife has a PhD. in English and is employed as a professor at the University of Connecticut. She earns a gross income of $925.00 per week. Husband has a bachelor’s degree and is employed as a television producer and as a licensed practical nurse. He earns a gross income of $600.00 per week. Both parties are capable of continued full-time employment.

The parties met each other in Cameroon and, thereafter emigrated to the United States. In 2000, after the birth of their two children, the parties returned to Cameroon where Husband worked as a television producer. Soon thereafter, Wife returned, alone, to the United States to complete her higher education and in 2003, received a PhD. Wife, thereafter, accepted a teaching position at the University of Connecticut and was soon joined, in Storrs, by Husband and their sons. While Wife worked at the University, Husband was employed as an LPN. In 2004, he earned a gross income of $50,250.00.

Wife offered no testimony as to the cause of the breakdown of the marriage. Husband, however, testified that in November 2005, Wife called him an “underachiever.” Husband felt insulted and disrespected by this comment and went to a hotel to “cool off.” Consistent with the culture of Cameroon, he consulted Wife’s family in Cameroon who told him that they could not help resolve this problem. Thereafter, Wife and Husband traveled to Washington, D.C. to meet with extended family members. These family members advised Husband that Wife intended to apologize to him upon their return to Connecticut. Instead a couple of days later, Husband was served with this complaint. In March 2006, Husband and Wife separated. Husband has relocated to the State of Maryland and is employed there.

Wife claims that the marriage of the parties is broken down CT Page 13984 irretrievably without prospect of reconciliation. Husband claims that he still loves Wife; that he cannot understand why she does not want to remain married to him; and that he does not believe that the marriage has broken down irretrievably.

“The determination of whether a breakdown of a marriage is irretrievable is a question of fact to be determined by the trial court. [Joy v. Joy, 178 Conn. 254, 255-56 (1979)]; Flora v. Flora, 337 N.E.2d 846, 850 n. 2 (Ind.App. 1975); Woodruff v. Woodruff, 114 N.H.365, 367 (1974). The fact that a defendant maintains hope for reconciliation will not support a finding that there are prospects for a reconciliation. McCoy v. McCoy, 236 Ga. 633, 634 (1976); see In re Dunn, 13 Or.App. 497 (1973). A difference, to be irreconcilable, need not necessarily be so viewed by both parties. Id.; In re Marriage of Baier, 39 Colo.App. 34 (1977) (evidence supported finding of irretrievable breakdown even though husband claimed strong attachment to wife and that difficulties could be resolved by counseling).”Eversman v. Eversman, 4 Conn.App. 611, 614 (1985).

In the present case Wife and Husband separated in March 2006, and have not resumed living together. Husband has relocated to the State of Maryland and maintains employment there.

Husband has not paid child support since June 9, 2006, and does not regularly visit the children. The court finds not credible Husband’s protestations that the marriage has not broken down. Thus the court finds that the marriage of the parties has irretrievably broken down, without hope of reconciliation. Judgment will enter dissolving the marriage on this ground.

Neither of the parties has any significant assets. Wife owns a motor vehicle, has a small bank account[4] and a small retirement account.[5] Husband’s financial affidavit lists no assets. As to these assets, Wife proposes that each party retain the assets listed on his or her financial affidavit. The parties have previously divided their personalty. Wife proposes that they each retain the personalty in his or her possession.

As to liabilities, Wife’s financial affidavit lists $77,300.00 in credit card debt and unpaid educational loans. Husband’s financial affidavit lists no liabilities. Wife proposes that each party be responsible for the debts listed on his or her financial affidavit. CT Page 13985 As to alimony, Wife proposes that neither party be awarded alimony.

As to the children, Wife proposes joint custody to the parties, primary residence with Wife and reasonable rights of access to Husband.

As to the issue of child support, Wife proposes that Husband pay child support in accordance with the child support guidelines worksheet that she filed on February 22, 2006.[6]

As noted above, Wife works as a professor at the University of Connecticut earning $925.00 per week; and Husband is employed as a television producer/LPN earning $600.00 per week. Wife claims, however, that Husband’s earning capacity greatly exceeds his stated income. Based on Husband’s 2004 federal income tax return, Wife claims that Husband is capable of earning $1,019.00 per week and asks the court to use that income for purposes of calculating its child support order. In response, Husband claims that although he earned over $50,000.00 in 2004, he does not presently earn that amount of money. He claims that LPN work is not readily available in Maryland.

The court finds Husband’s explanation, uncorroborated by any other evidence in this case, to be not credible. The court further finds that Husband has an earning capacity of at least $50,000.00 per year. Thus in calculating child support, the court adopts the calculations set out in Wife’s child support guidelines worksheet. The court finds, therefore, that the weekly income of Wife is $925.00 and of Husband is $1,019.00. Allowing for permissible deductions, the parties’ combined net weekly income is $1,530.00 and their basic child support obligation is $371.00 per week. Of this $371.00, 51% or $189.00 is attributable to Wife and 49% or $182.00 is attributable to Husband.

In addition Wife claims that there is an accrued arrearage for child support. On March 13, 2006, the parties entered into an agreement that Husband pay $145.00 per week for child support, pendente lite. That same day, the parties’ agreement was accepted by the court and entered as an order of the court. Wife claims that since June 9, 2006, Husband has failed to pay the court-ordered child support. Thus as of August 4, 2006, Husband owes eight weeks or $1,160.00 in child support.

As to medical insurance, Wife proposes that she maintain health CT Page 13986 insurance for the benefit of the children, if available through her employer. Wife also proposes that Husband maintain insurance for the children, if the cost of same is less than that under Wife’s policy. Wife further proposes that the parties share the cost of any premiums and any unreimbursed medical costs.

Wife further proposes that the court reserve jurisdiction for purposes of any post-secondary educational support of the children. Both parents have college degrees and Wife has a doctoral degree. The court finds, therefore, that, pursuant to Gen. Stat. § 46b-56c(c), it is more likely than not that the parties would have provided support to their children for higher education or private occupational school if the family remained intact. Given the youth of the children and uncertainty of the parties’ future, however, the criteria set forth in §46b-56c(c)(1-6) cannot be meaningfully assessed now, so that, at this time, the court is unable to make a final determination as to the amount and nature of such educational support. Thus the court will retain jurisdiction to enter, in the future, an appropriate order.

Wife also proposes that Husband be ordered to maintain a life insurance policy for the benefit of the minor children in the amount of one hundred thousand ($100,000.00) dollars until the children reach the age of twenty-three. At trial, no evidence was adduced as to whether Husband’s life is presently insured[7] or whether life insurance is available to Husband and, if so, the cost thereof. “. . . [I]f life insurance was not in existence at the time of the judgment, the court cannot craft an order regarding such insurance without evidence of the cost or the availability of the life insurance to the party ordered to purchase it. Michel v. Michel, 31 Conn.App. 338, 340-41 (1993). `Without knowing the availability of such insurance, the trial court has entered an order with which the [defendant] may not be able to comply. Without knowing the cost of such insurance, the trial court has entered . . . financial orders that may be inappropriate, that is, too high or too low depending on the funds required to obtain such insurance.’ Id.,
341″ Porter v. Porter, 61 Conn.App. 791, 805 (2001). In the absence of the proof required by Michel and Porter, the court declines to enter any order regarding life insurance.

The court orders as follows:

1 — The marriage is dissolved on the grounds of irretrievable CT Page 13987 breakdown.

2 — All orders to take effect August 5, 2006, except as otherwise noted.

3 — Joint legal custody of the two children, primary residence with Wife, liberal and reasonable access by Husband. In the event of any disagreement as to any decision concerning the children, Wife’s decision shall prevail.

4 — Child support of $182.00 per week to be paid by Husband. In addition Husband to pay $25.00 per week toward the arrearage of $1,160.00. Husband to reimburse Wife for 50% of any work-related child care costs, within 30 days of being presented with documentation of same. Husband to reimburse Wife for 50% of any co-pays or uninsured medical, dental, orthodontic, psychiatric, psychological and prescriptive expenses for children within 30 days of being presented with documentation of same. These child support payments are subject to an immediate income withholding order.

5 — Wife to maintain her present medical insurance coverage for the benefit of the minor children as long as available at reasonable cost through her employment until and unless the children are no longer eligible. If medical insurance is not available to Wife through her employer at reasonable cost, Husband shall maintain medical insurance for the children if available at reasonable cost through his employer. If neither party is able to obtain health insurance at reasonable cost through their employment, Wife to apply for HUSKY or equivalent insurance. Husband and Wife to share equally the cost of any HUSKY or equivalent insurance premiums.

6 — The court retains jurisdiction pursuant to Gen. Stat. §46b-56c for purposes of future educational support motions and orders with regard to the post-secondary education of the children.

7 — Wife is entitled to claim the minor children on her tax return for 2005, 2006 and for every even tax year. Husband may claim the minor children on his tax return for 2007 and for all odd tax years so long as he is current in his child support, child care and health care reimbursement payments by January 31 of the following year. [Eg: for tax year 2007, Husband must be current on or before January 31, 2008]. When there is only one CT Page 13988 exemption remaining, the parties shall alternate that exemption. In the first year in which there is an uneven number of exemptions, Wife shall take the exemption. The non-claiming spouse shall sign IRS form 8332 by February 15th each year.

8 — Wife and Husband to complete the parenting education program and submit documentation thereof to the Clerk’s Office to be included in the court file. Wife and Husband are barred from filing any postjudgment motions for modification or contempt until the successful completion of the parenting education program.

9 — Wife to have possession of the children’s United States and Cameroon passports. Neither party to apply for substitute or replacement passports or a passport from another country without advance written notice to the other party.

10 — Wife to retain the 1995 Toyota Camry listed on her financial affidavit. Husband will promptly execute any documents necessary to transfer title to same. Wife is responsible for any debt or taxes attributable to her vehicle and shall indemnify and hold Husband harmless with respect to any debt, taxes or other encumbrances for her vehicle.

11 — Each party to retain the assets listed on his or her financial affidavit.

12 — Each party to retain the personalty now in his or her possession.

13 — No alimony to be paid by either party to the other.

14 — Each party to pay his or her own debts as listed on their respective financial affidavits and hold the other harmless and indemnify him or her as to same.

15 — Each party to be responsible for his or her own medical and hospitalization insurance and unreimbursed medical bills.

16 — Plaintiff’s birth name of Joyce Ashuntantang is restored to her.

17 — Plaintiff’s counsel to prepare and file a judgment file within 30 days. CT Page 13989

[1] At trial, Husband claimed that he did not want a dissolution of marriage, but rather, wished to reconcile with Wife.
[2] Defendant did not submit proposed orders.
[3] There is no evidence that either Wife or Husband suffer from any mental or physical disabilities or impairments.
[4] Current balance of $100.00.
[5] Current balance of $3,000.00.
[6] Husband did not file a child support guidelines worksheet.
[7] Husband’s financial affidavit indicates that he does not presently have any insurance.

CT Page 13990