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Wedderburn v. Glenroy

Superior Court of Connecticut, Judicial District of Hartford, Hartford

January 4, 2017

Nadia Wedderburn
v.
Glenroy

          MEMORANDUM OF DECISION AND ORDER RE DEFENDANT'S MOTION FOR CONTEMPT (#172)

          Robert Nastri, Jr., Judge.

         This action for dissolution of marriage was brought by writ of summons and complaint dated June 12, 2015, with a return date of June 30, 2015. The defendant filed a cross complaint on June 25, 2015. (#105.) Thereafter, on November 27, 2016, the defendant filed a motion (#172) seeking to have the plaintiff held in contempt for failing to obey the order of the court (Suarez J.) (#153) that she comply with the defendant's November 17, 2015 requests for production within thirty days of the order.

         The plaintiff, Nadia Wedderburn, whose birth name was Nadia Gooden, [1] and the defendant, Glenroy Wedderburn, were married on December 12, 2007 in Trelawny, Jamaica, West Indies. The plaintiff resided in Connecticut for more than one year before she filed the complaint. The marriage produced two minor children: DaJuan Wedderburn, born August 13, 2004 and Reece Wedderburn, born October 7, 2013.

         The court heard the testimony of the parties on November 29 and 30, and December 1, 2016. Both parties were represented by counsel. Each party testified at great length. The plaintiff introduced twenty full exhibits; the defendant introduced twenty-three full exhibits. The plaintiff also elicited testimony from Aisha Hudson, the defendant's friend and current landlord.

         Statutory Basis

         General Statutes § 46b-81(c) provides the statutory framework for equitable distribution of property. It provides, in relevant part: " In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the . . . dissolution . . . the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties to the acquisition, preservation, or appreciation in value of their respective estates."

         The Parties

         The plaintiff was born in Jamaica, West Indies on July 8, 1978. She is currently thirty-eight years old. She arrived in this country in 1999. The plaintiff has worked as a customer service representative for Eversource for the last seven years, presently earning a gross wage of $1, 002 per week. Defendant's Exhibit M . She had been employed as a customer service representative at American Airlines before she left for the job at Eversource. She changed jobs for better opportunities, better benefits and more money.

         The plaintiff has a bachelors degrees in International Relations and Sociology from the University of West Indies. She also earned an associates degree from the Culinary Institute about seven years ago. She hoped to use the skills she learned at the Culinary Institute to open a restaurant, a venture in which the defendant had no interest.

         In February 2015, the plaintiff suffered a stroke that kept her out of work for two to three months. She is currently asymptomatic although she is still medically monitored. She takes a daily aspirin along with medication to control her blood pressure and anxiety.

         The defendant was born in Jamaica on January 5, 1978. He is thirty-eight years old and in good health. He has a high school education. The defendant works for Owens, Renz & Lee Realty as an electrician. He has an E-2 electrician's license requiring him to work under the supervision of someone with an E-1 electrician's license. The defendant has been at Owens, Renz & Lee Realty for about three years. He was previously employed by Griffin Electric as an electrician E-2 for about thirteen years. He reported on his financial affidavit that he earns a gross income of $1, 255.26 from Owens, Renz & Lee Realty. The defendant also earns income from rental properties he has bought and rehabilitated. His financial affidavit reflects weekly gross rental income of $883.72. Defendant's Exhibit B .

         The defendant currently owns two rent-producing properties but, during the marriage he bought and sold several others. At one point during the marriage, the defendant had a goal of starting a business buying, rehabilitating, and selling residential real estate, a process he described as " flipping" houses.

         In addition to his two sons with the plaintiff, the defendant has a seventeen-year-old daughter, Chazene, with another woman. He has been arrested twice for domestic violence; once with the plaintiff and once with his daughter's mother. He has no convictions.

         Issues in the Marriage

         The parties were together for about fifteen years but married for only nine of them. Their oldest son was born three years before the marriage; their youngest son was born six years after the marriage.

         The defendant identified the main problem in the marriage as his belief the plaintiff had an extramarital affair. He identified the other party to the affair as Dwayne Barrett, someone with whom he alleged the plaintiff had a relationship before the marriage. The defendant acknowledged the plaintiff never admitted to the affair but testified he was always distrustful of her as a result of his suspicions. The defendant also described the plaintiff as very selfish. The defendant complained that the parties never discussed finances, had no joint accounts, no joint debts and filed separate income tax returns. He also complained that the plaintiff never allowed him to claim their sons as dependents for tax purposes, despite his repeated requests that he be allowed to do so. The defendant testified that when the parties argued, he had to give in or the argument never ended. He also testified that they argued a lot.

         The plaintiff denied under oath that she ever had an affair although she acknowledged the defendant accused her of having affairs several times during their marriage. She also denied ever dating anyone named Dwayne. For her part, the plaintiff tied the demise of the marriage to the emotional and physical abuse she claimed the defendant inflicted on her. She alleged that after DaJuan was born, the defendant began to criticize her body, specifically a body part she declined to identify. She reported that whenever they argued, and she agreed they argued often, the defendant referred to her body in demeaning terms, eventually causing her to lose self-confidence. She also complained the defendant did not support her when she had her stroke, a claim the defendant denied.

         The plaintiff also testified there were two instances of physical violence during the parties' marriage. On the first occurrence, the parties were arguing about the defendant staying out late at a club, according to the plaintiff. By the plaintiff's account, the defendant thought she was being disrespectful, grabbed her by the throat and choked her. She said DaJuan was present and tried to pull the defendant away from her.

         The defendant did not deny they argued on that occasion but denied he ever laid his hands on his wife or that DaJuan was a witness to the argument. Regardless of what actually happened, the defendant was arrested and was the subject of a full protective order. Plaintiff's Exhibit 4 . The plaintiff was the protected party. The order prevented the defendant from returning to the marital home for about a month. Plaintiff's Exhibit 4 .[2] Eventually, after the defendant took some family violence classes, the plaintiff agreed to a nolle entering on the defendant's charges mainly because DaJuan wanted his father home. The plaintiff denied recanting her story as the defendant claimed. She testified the defendant apologized to her for his behavior.

         The plaintiff reported another instance of domestic violence, not involving the police. She recalled an argument with the defendant while she was pregnant with Reece. During the argument, the defendant raised his hand to strike her but the defendant's mother interceded to protect the plaintiff, who reported being scared but uninjured.

         The plaintiff also reported an incident that occurred once when the parties were returning from Jamaica. The defendant was detained at customs due to an outstanding arrest warrant. Subsequently, he was arrested for burglary and risk of injury to a minor as a result of a domestic violence incident with his daughter's mother. The plaintiff said she went to the police department with the defendant and supported him in court. She did not know what happened to the case other than that the defendant was not convicted.

         The plaintiff claimed she tried to get the defendant to engage in marriage counseling throughout the marriage and as late as May 2015, but he steadfastly refused. She testified he told her in May 2015 that marriage counseling would not work because he did not love her anymore and was already done with the marriage. The defendant testified the plaintiff gave him an ultimatum: either marriage counseling or divorce. He claimed he was willing to get co-parenting counseling but would not respond to an ultimatum. The plaintiff testified she went to counseling on her own and believed it helped her gain the perspective she needed.

         I. Parenting Plan

         The parties largely agree on the parenting plan recommended by the Office of Family Relations.

         II. Alimony

         Neither party requested alimony.

         III. Post-Secondary Education Expense

         The plaintiff asked the court to retain jurisdiction over this issue.

         IV. Medical Insurance

         The plaintiff testified she pays for health insurance for herself and the parties' two minor children through her employer. The defendant pays for his own health insurance through his employer.

         V. Real Property

         The parties own their marital home at 64 Briarwood Drive, Windsor. They bought it in July 2003, before the marriage, for $139, 000, and moved in immediately. Defendant's Exhibit O . They each contributed $5000 to the purchase. They took a second mortgage in April 2006, to do some renovations on the marital home and to purchase an income producing property at 292 Saybrooke Street, Hartford. Defendant's Exhibit T .[3] They were able to pay off the second mortgage in 2007. Defendant's Exhibit U . The renovations included a refurbished kitchen, a new roof, siding and hardwood floors. Later, the parties added central air conditioning, a deck and hot tub, and also finished the basement. The defendant did most of the work on the home. A recent appraisal valued the property at $180, 000 and found it to be in above average condition. Plaintiff's Exhibit 1 . The defendant testified he paid the mortgage throughout and before the marriage. He also acknowledged the plaintiff paid other household expenses, in keeping with their tacit agreement to keep their finances separate. The marital home is currently encumbered by a mortgage of $117, 896, as of September 8, 2016. Defendant's Exhibit I .

         The parties own an income-producing property at 27-29 Brook Street, Hartford. The property, which was purchased in January 2007, for $90, 000 with the proceeds from the sale of 292 Saybrooke Street, is titled in the defendant's name. Plaintiff's Exhibit 14 . The building has three units. The first and second floor apartments have three bedrooms; the third floor unit cannot be used as an apartment because it doesn't have a second egress. Plaintiff's Exhibit 2 .

         The defendant intended to use it as an office for his real estate business but claimed the first floor tenant is using it for storage. When confronted with an appraiser's pictures showing furniture, a Christmas tree, a fish tank and children's pictures on the wall in the living room and kitchen utensils and cooking paraphernalia in the kitchen, the defendant admitted he didn't know how the tenant was using the space.[4] Plaintiff's Exhibit 2 .

         According to the defendant, the first floor unit rents for $900 per month plus utilities. The current tenant has been there eight or nine years and has a month-to-month lease. The second floor rents for $850 per month with the tenant paying the utilities. The defendant testified the current tenant of the second floor had not paid rent in three months so the defendant is going to start eviction proceedings. The plaintiff's appraiser valued the property at $150, 000. Plaintiff's Exhibit 2 . The defendant took pains to point out that he bought the house for cash and put a mortgage on the property for $180, 000, all before the parties were married.[5] Defendant's Exhibit E . The property is currently encumbered by a mortgage of $162, 000. Defendant's Exhibit H .

         The parties also own an income-producing property at 199-201 Holmstead Avenue, Hartford. The property also is titled in the defendant's name. The defendant purchased the property for $44, 500 in August 2010, with proceeds of a mortgage on the Brook Street property. The property has three rental units. Plaintiff's Exhibit 3 . The first floor tenant pays $900 per month plus utilities and the third floor tenant pays $850 per month but pays for the utilities. The second floor apartment is occupied by the defendant's sister and her children. The defendant's sister does not pay rent but the defendant testified the unit normally would rent for $850 per month. The plaintiff's appraiser valued the property at $140, 000. Plaintiff's Exhibit 3 . There is no mortgage on the property.

         Schedule E of the defendant's 2014 tax return shows the two rental properties produced gross rental income that year of $31, 104. Plaintiff's Exhibit 10 . The same schedule on the defendant's 2015 return shows the properties produced gross rental income that year of $50, 809. Plaintiff's Exhibit 11 .

         VI. Bank Accounts

         The parties maintained separate bank accounts throughout the marriage. In the six months following the filing of the divorce action, the defendant removed almost $49, 000 from his accounts, nearly $40, 000 from one account and $9, 000 from the other. In 2015, the defendant withdrew from his Hartford Federal Credit Union account $8, 000 on June 16, $4, 000 on June 29, $5, 000 on July 2, $3, 000 on August 31, $5, 000 on September 16, $3, 000 on October 23, $1, 500 on November 17, $5, 000 on November 24, $1, 000 on December 4, $1, 500 on December 17, $1, 500 on December 21, and $1, 500 on December 23. Plaintiff's Exhibits 5 and 6 . The same year, he also withdrew $4, 000 on June 24, and $5, 000 on July 2, from his People's United account.[6] Plaintiff's Exhibit 9 . The Hartford Federal Credit Union account balance went from $31, 544 to $850 between June 2015, and December 2015.[7] Plaintiff's Exhibits 5 and 6 . Interestingly, in the five months before the divorce started, the defendant did not withdraw any money from that account. Plaintiff's Exhibit 5 .

         The defendant claimed the money was used to operate the rental properties in the normal course of business, to furnish his new apartment, to pay his lawyer a retainer, and to settle a lawsuit. Specifically, he testified he used the $8, 000 withdrawn on June 16 to renovate the second floor apartment at Brook Street, the $4, 000 withdrawn on June 29 to return a security deposit and renovate some bathrooms, the $5, 000 withdrawn on July 2 for a pre-planned Jamaican vacation, and the $5, 000 withdrawn on September 16 for legal fees. He also testified he spent $12, 000 in December 2015 on unspecified renovations to the income-producing properties, and settled a lawsuit over water bills for $6, 225. He denied moving any of the money to other bank accounts or of having any money left after he paid his expenses.

         The plaintiff claimed the defendant has bank accounts in Jamaica, a claim the defendant denied. The plaintiff testified she found two bank books for accounts at National Commercial Bank in Jamaica among the defendant's belongings in the basement of the marital home where he was living after she filed the divorce action. According to the plaintiff, the bank books were in the defendant's name. The plaintiff didn't take the bank books but wrote down the account numbers. Plaintiff's Exhibit 15 . The bank books indicated that one account had $6, 152, 365.27 Jamaican dollars (account number ending in 6702) and the other account contained $5, 802 in U.S. dollars (account number ending in 9868). The plaintiff testified the exchange rate at the time she found the bank books was 116 Jamaican dollars to one U.S. dollar.[8] The defendant did not contradict the plaintiff's testimony regarding the exchange rate.

         The plaintiff also found an ATM withdrawal receipt showing $10, 000 Jamaican dollars were withdrawn from one account on May 29, 2015 at 4:55 p.m. (account number ending in 6702). Plaintiff's Exhibit 16 .[9] The withdrawal receipt also indicated the balance on the account was $5, 539, 582.07 Jamaican dollars, or $47, 755.01 U.S. dollars, after the withdrawal. The account number on the withdrawal receipt matched the account number on one of the bank books the plaintiff found in her basement. The plaintiff testified she and the defendant were in Jamaica on May 29, 2015. She also testified the defendant told her he had Jamaican accounts that he was going to use to buy land. The plaintiff acknowledged she didn't know if he had done so. The defendant admitted he once had bank accounts in Jamaica but testified he hasn't had one in many years, long before his marriage.

         V. Liabilities

         The parties kept their financial affairs separate throughout their marriage. They have individually owned bank accounts, credit cards and automobiles. The only joint asset they have is the marital home.

         The defendant accused the plaintiff of being a profligate spender. He alleged she entered the marriage with substantial credit card debt and continued to amass more debt during the marriage. The plaintiff listed total liabilities of $53, 005 on her financial affidavit, $20, 550 of those liabilities were credit card debts. Most of the balance was for her student loan and attorneys fees. The defendant wasn't afraid to use his credit card, either. He listed total liabilities of $30, 930, a large portion of which related to the income-producing properties and the defendant's attorneys fees.

         VI. Attorneys Fees

         Both parties were represented by counsel.

         VII. Motion for Contempt

         The defendant seeks to have the plaintiff held in contempt for her failure to provide him with certain credit card records. The court, Suarez, J., ordered the plaintiff to obtain and provide the records to the defendant. (#153.) The plaintiff wrote to the credit card companies requesting the records and was told that the records available were limited to certain time periods. Plaintiff's Exhibit 19 . The defendant wanted the records to support his claim that the plaintiff brought substantial debt to the marriage.

         FINDINGS

         The court finds all facts by a preponderance of the evidence presented. The court has listened carefully to the witnesses and assessed their credibility. " It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses . . . It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped . . . to assess the circumstances surrounding the dissolution action." (Emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010).

         The court has reviewed all exhibits and given them appropriate weight. The court has applied all applicable law, including that law found in General Statutes § § 46b-56, 46b-62, 46b-84, 46b-86 and 46b-87.

         The court unseals all financial affidavits and takes judicial notice of all pleadings in the court's file.

         All statutory stays have expired and the court is free to enter a judgment of dissolution.

         The allegations of the complaint are proven and true.

         The marriage of the parties has broken down irretrievably.

         Neither party is more at fault for the failure of their marriage than is the other.

         The parties have two minor children issue of the marriage: DaJuan Wedderburn, born August 13, 2004, and Reece Wedderburn, born October 7, 2013.

         Neither the state of Connecticut nor any municipality therein has contributed to the support of either party or the minor children.

         It is in the best interests of the minor children for the parties to have joint legal custody with the plaintiff having physical custody.

         The plaintiff earns a weekly gross income of $1, 002 and a net income of $688. Defendant's Exhibit M .

         The defendant earns a gross weekly income of $2, 138.98 and a net weekly income of $1, 710.10. Defendant's Exhibit B .

         The child support guidelines[10] indicate the defendant should pay $265 per week to the plaintiff based on their net weekly incomes as shown on their financial affidavits, assuming the plaintiff is the head of household and each party claims one child as a tax deduction.

         The parties both own the martial home.

         The plaintiff is currently in possession of the marital residence.

         If the parties' marriage had remained intact, they would have provided post-secondary educational ...


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