DCF later moved to open and modify the disposition from a classification of protective supervision to commitment.  The mother filed a motion requesting that guardianship be transferred to the maternal grandmother instead.  Following a two day hearing, the Court ruled in favor of the mother.

In its decision, the Court focused primarily on the child’s relationship with his grandmother.  The Court noted that he had a strong relationship with her from birth, and that they were well bonded to one another.  The Court further noted that when the grandmother offered herself as a placement resource for the child, DCF accepted numerous times during the course of the case.  In fact, with DCF approval, the child actually resided with the maternal grandmother, who was also utilized as a visitation supervisor.  The Court found that the maternal grandmother provided appropriate care for the child, and that the child was emotionally attached to her.  Throughout the course of DCF’s two year involvement in the case, it never claimed that the child received inappropriate treatment from the grandmother.  Based on the foregoing, the Court ultimately found that the grandmother was a suitable guardian and that it was in the child’s best interest to transfer guardianship to her.

Should you have any questions relating to DCF proceedings, or family matters generally, please do not hesitate to contact Michael D. DeMeola.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

In the matter of Weismuller v. Weismuller, (New London J.D. at Norwich), the defendant husband, who represented himself at trial, sought a downward modification of his child support award on the basis that he had become unemployed since the judgment of dissolution.  The Court found that the defendant had previously earned approximately $170,000.00 per year as the chief judge of the Mashantucket Pequot Tribal Court.  Although the defendant was not reappointed when his term came to a close, the Court found his efforts at re-employment to be lacking despite the presentation of employment applications with various government agencies and tribal courts.  The Court instead found that Weismuller, who now sought a modification of his support obligations, failed to prove he had engaged in a good-faith, comprehensive, and meaningful search for employment.

With a thinly-veiled message to the defendant and unemployed individuals elsewhere in this State who seek to modify support orders on that basis, the Court wrote, “While the court understands and appreciates that a highly paid professional may take significant time to return to the workforce, the court concludes that this time is fast approaching.”

Individuals who seek to modify terms of a separation agreement and divorce judgment should first seek the assistance of a well-qualified, experienced family law practitioner.

Questions about this posting may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com or 203-221-3100.

In granting the aunt’s motions, the Court explained that pursuant to Connecticut General Statutes § 46b-129(j), if a court determines that commitment should be revoked and the child’s guardianship should vest in someone other than his or her parents, or if parental rights are terminated at any time, there shall be a rebuttable presumption that an award of legal guardianship or adoption to a relative who is licensed as a foster parent shall be in the best interests of the child.   That presumption may be rebutted only by a preponderance of the evidence that such an award would not be in the child’s best interests and that such relative is not a suitable and worthy caregiver. In Re Noella A., Superior Court, Judicial District of New London, Docket No. K09CP09011902A (March 24, 2011, Mack, JTR).

Employing the aforementioned standard, the Court found that although the children had progressed well in foster care, there was no showing that the same progress could not be made if they lived with the maternal aunt.  The Court also found that in living with the aunt, the children would be with their cousins in an equally secure, safe, caring and nurturing environment. The Court further explained that even though the children established a bond with their foster parents, there was nothing to suggest they could not do so with their extended family. Ultimately modifying the permanency plan from termination of parental rights and adoption to transfer of guardianship, the Court stated it could not find that placement with the aunt would not be in the children’s best interests.

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact Michael D. DeMeola.  He can be reached in the firm’s Westport office at (203) 221-3100, or by e-mail at mdemeola@mayalaw.com.

In overruling the mother’s objection, the Court noted that it is required to approve a permanency plan that is in the best interests of the child and takes into consideration the child’s need for permanency.  In considering a permanency plan, the child’s health and safety are of paramount concern. From an evidentiary standpoint, the judicial authority must find that the proposed goal of the permanency plan is in the best interests of the child by a fair preponderance of the evidence.

In this particular case, the Court considered the testimony of three expert witnesses, as well as evidence which established that both children were the victims of repeated sexual and physical abuse.  The Court further found that the parents failed to adequately acknowledge the abuse or the children’s special needs despite ample time and services.  Finally, the Court found that the children had been in foster care for over three years and felt a sense of well-being, safety and comfort in the home.  Based on those findings, the Court ultimately held that the permanency plan, including termination of parental rights, was in the children’s best interests.

Should you have any questions related to DCF proceedings, or family matters generally, please feel free to contact Michael D. DeMeola.  He practices in the firm’s Westport office and can be reached at (203) 221-3100 or mdemeola@mayalaw.com.

The Department of Children and Families subsequently filed a petition for termination of parental rights alleging that the child was being denied proper care and attention, and that the mother failed to rehabilitate herself.  After a trial, the court granted the Department’s petition, concluding that the child’s best interests would be served by severing the relationship with his mother.  The mother appealed on the basis that, among other things, the child’s foster parents had not guaranteed they would adopt him.

In its ruling, the Supreme Court explained that the law does not preclude the termination of a biological parent’s rights simply because adoption of the child by new parents is not imminent. Indeed, “Although subsequent adoption is the preferred outcome for a child whose biological parents have had their parental rights terminated… it is not a necessary prerequisite for the termination of parental rights.” (internal citations omitted). Id. at 492.  The Court further explained, “While long-term stability is critical to a child’s future health and development… adoption provides only one option for obtaining such stability.” (internal citations omitted). Id. at 492.  According to the Court, the reluctance of the child’s foster parents to proceed with adoption at the time of the termination proceedings was not a sufficient reason to disturb the trial court’s judgment. Id.

Citing various sources, the Court emphasized the importance of permanency, explaining “Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care.” (internal citations omitted). Id. at 494-495.  “No child can grow emotionally while in limbo, never really belonging to anyone except on a temporary and ill-defined or partial basis.” (internal citations omitted). Id. at 495.

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact Michael D. DeMeola.  He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

In a parallel case, the child’s biological father was also committed to the Department, and ultimately placed in foster care himself.  The Court found that the father was fully compliant with all DCF requirements, including attendance at school, and was also showing appropriate parenting skills.  When the Department indicated it intended to reunify the child with her father in his new home, the child’s foster mother filed a motion seeking intervenor status to oppose the removal.

In denying the foster mother’s request, the Court explained, “A person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.”  The Court further explained, “These proceedings affect the rights of [the child] and her parents, not the rights of the foster mother.  Foster parents are entrusted with foster children on a temporary basis only.  Clearly the foster mother will be emotionally affected by the court’s decision; however the court’s judgment affects the rights of [the child] and her parents, particularly the father.  It does not affect any direct or personal right that the foster mother may hold by law.”

With respect to the fact that the foster mother was allegedly told she would be the adoptive option for the child, the Court appeared to be sympathetic explaining it could “only imagine her frustration if in fact she was told she would be the adoptive resource…”  Nevertheless, it ultimately held there was no controversy before it that require[d] the foster mother’s involvement.”  Ultimately, “It is [the father] that has a right to be reunited with his daughter.”

Should you have any questions related to DCF proceedings, please feel free to contact Michael D. DeMeola.  He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com

The parties, who had been divorced since shortly after their divorce trial in the spring of 2010, have been engaged in protracted litigation – including an appeal by the wife to the Appellate Court – over numerous issues relating to the judgment of dissolution and monies claimed to be owed by the husband to the wife.  The parties each filed three motions which were heard at one time by the Superior Court in November of 2011.  Among other allegations, the wife claimed that the husband – who is gainfully employed – should have to pay for her appellate and post-judgment counsel fees, which are in excess of $110,000.00 and rapidly increasing.

In completely denying each and every one of the wife’s post-judgment motions, including a motion for contempt and the motion for counsel fees, the Honorable Howard T. Owens, Jr. held that “the Defendant’s monthly shortfall in liquidity is not the Plaintiff’s responsibility.  She makes her own financial decisions and has received what the Court has determined was just and appropriate under all the circumstances.”

The Court stated that it considered not just the parties’ present financial status (the wife claims to have no assets available with which to pay counsel fees), but also considered the voluntary depletion of her net worth since the date of trial, noting the considerable alimony she had received and had apparently spent, as well as her elective living expenses and the disposition of her other assets.  The Court opined that the wife “cannot be rewarded for her own financial indiscretions.”

Finding her request for counsel fees to be “inequitable in the extreme” given the testimony presented at the evidentiary hearing, the Court denied the wife’s request for counsel fees and left her responsible for her own costs of this ongoing litigation.

See Von Kohorn v. Von Kohorn, Docket No. FA-09-4027456-S, Superior Court, J.D. of Fairfield at Bridgeport (Owens, JTR), decided February 6, 2012.  Counsel for Plaintiff: MAYA MURPHY, P.C. by H. Daniel Murphy, Esq.

Questions regarding the above may be directed to Attorney Murphy at hdmurphy@mayalaw.com or at 203-221-3100.

On November 22, 2010, the plaintiff filed a motion to modify his unallocated support obligation, which the court previously reduced to $4,000 per month.  In reviewing the then current circumstances of the parties, the court found that the defendant wife changed her employment from an advertising group, where she was compensated based on commissions, to a charitable association where she served as a regional director and was paid a salary. Though the wife testified she experienced a slight reduction in income, her financial affidavit actually reflected a slight increase.

The plaintiff claimed that his income had decreased between thirty-five and forty percent since the last modification.  To support this claim, the plaintiff pointed to the financial affidavits he filed in both the previous hearing and the current hearing.  In his prior affidavit, the plaintiff showed gross weekly income of $2,707 and net weekly income of $2,359.  In the more recent affidavit, however, he demonstrated gross weekly income of $5,019 and net income of $1,348. The main reason for the change was an additional entry shown as a deduction on the more recent affidavit for “chiropractic expenses” in the amount of $3,109 per week.  Although the court recognized the deduction, because the previous modification took place approximately half way through the previous year, the court adjusted it, ultimately finding that the plaintiff’s weekly net income for the basis of the motion for modification was $1,950, a seventeen percent decrease.  Notably, the Court also took into consideration the fact that in June 2011, the youngest child, who was eighteen at the time of the hearing, will graduate from high school and no longer be entitled to support.

Ultimately finding that the foregoing factors constituted a substantial change in circumstances, the Court reduced the plaintiff’s support obligation to $3,200 per month effective January 1, 2011, then $2,700 per month effective July 1, 2011.

Should you have any questions relating to alimony, or divorce proceedings generally, please feel free to contact Michael D. DeMeola, Esq. by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

A financial account includes a savings or checking account, securities or brokerage account, futures or options account, an insurance or annuity policy with a cash value, and shares in a mutual fund or similar pooled fund, and other accounts maintained with a financial institution.  A financial account is “foreign” if the institution is physically located outside of the United States.  FBAR is not required for an account maintained with a branch, agency, or other office located in the U.S., even if the financial institution is foreign.  An account is not deemed foreign merely because it may contain holdings or assets of foreign entities, as long as the owner maintains the account with a financial institution located in the United States.

A “U.S. person” must file an FBAR if (i) the U.S. person had a financial interest in or signature authority over at least one financial account located outside of the United States, and (ii) the aggregate value of all foreign financial accounts exceeded $10,000 at any time during the calendar year to be reported.

For this purpose, a “U.S. person” means a U.S. citizen or a U.S. resident, as well as a corporation, partnership, limited liability company, and trust and estate formed under the laws of the United States or a state thereunder.

Generally, a U.S. person has a “financial interest” in a foreign financial account if she is the record owner or has legal title in the account, whether or not she is the beneficial owner.

Moreover, a U.S. person has a financial interest in a foreign account held by a nominee, if the beneficial owner of the foreign account is a U.S. person.  Also, a U.S. person has a financial interest in a foreign account where a corporation, partnership, or a trust is the record owner or has legal title in the foreign account, if a U.S. person owns more than 50% of the (i) total value of shares or voting stock of a corporation, (ii) partnership’s profits or capital, or (iii) the trust’s assets or income, as applicable.

A person has a “signature authority” if she has the authority to control the disposition of money, funds or other assets held in a financial account by direct communication (whether in writing or otherwise) to the person with whom the financial account is maintained.

Exceptions to the FBAR reporting are found in the FBAR instructions, including participants in retirement plans that hold foreign financial accounts.

On the FBAR form, taxpayers must report their interest in the foreign financial account and identify the foreign country where the account is maintained.

The FBAR is not filed with the tax return and must be received by the IRS on or before June 30 of the following calendar year being reported.  A request for extension for filing the FBAR is not allowed.

A civil penalty not in excess of $10,000 per violation could apply to a failure to file an FBAR.  No penalty will be imposed if there is a reasonable cause for the failure and the balance in the account is properly reported.  Willful failure to file an FBAR may trigger a civil monetary penalty equal to the greater of $100,000 or 50% of the balance in the account at the time of the violation as well as criminal penalties.  Willfulness is generally determined by a voluntary, intentional violation of a known legal duty.

In the past few years, the Tax Division of the U.S. Department of Justice criminally indicted several taxpayers and advisors for activities associated with U.S. persons holding undeclared interests in foreign financial accounts, and many others are targets or subjects of ongoing federal criminal investigations.  In February 2009, UBS, under threat of criminal prosecution from the U.S. Department of Justice, turned over “secret” bank account information related to 280 of their U.S. clients and subsequently agreed to turn over information on many thousand more.  Credit Suisse reportedly started issuing letters to their US clients stating that a request for information on U.S. account holders has been received and that Credit Suisse has been ordered to turn over the information to the Swiss Federal Taxing Administration, which will then turn them over to the IRS, unless the US clients can demonstrate the turnover of information would violate Swiss law, including the U.S.-Swiss Tax Treaty.

Taxpayers with undisclosed foreign accounts can become compliant with the U.S. tax laws by directly participating in the IRS voluntary disclosure program or by merely filing an amended or delinquent returns and FBARs for prior years.  The IRS had issued voluntary disclosure programs in 2009 and 2011 for undeclared interests in foreign financial account.  Under the 2011 program, eligible taxpayer must contact the IRS Criminal Investigation to request participation in the program, must file all original and amended income tax return as applicable, and pay any taxes owed (including interest and penalties).  Under the IRS long-standing voluntary disclosure practice, taxpayers who voluntarily disclosed their foreign bank accounts under the voluntary program are able to avoid potential criminal prosecution.

On January 9, 2012, the IRS reopened the offshore voluntary disclosure program “to help people hiding offshore accounts get current with their taxes.”  The IRS announced that it received over 33,000 voluntary disclosures and collected more than $4.4 billion so far from the two previous voluntary disclosure programs.  Under the 2012 program, a single penalty of 27.5% of the highest aggregate balance in foreign bank accounts during the eight full tax years prior to the disclosure will apply, up from 25% in 2011.  Some taxpayers will be eligible for 5 or 12.5% penalties, same as 2011.  In addition, participants must file an original and amended tax return, pay back taxes and interest for up to eight years, and pay any applicable accuracy-related and/or delinquency penalties as applicable.  Unlike the 2011 program, there is no set deadline for people to apply, and the terms of the program (e.g., penalties may be increased for all or some taxpayers) could change at any time going forward.

Generally under the voluntary disclosure program, taxpayers can reasonably calculate the total cost of resolving all offshore tax issues and avoid potential criminal prosecution.  Taxpayers who do not make voluntary disclosure risk detection by the IRS, substantial penalties (including the civil fraud penalty and foreign information return penalties), and possible criminal prosecution.

Please contact Heather K. Lee, Esq. at (203) 221-3100 to discuss any matters pertaining to your foreign financial account and the FBAR reporting requirement.

The husband had been employed in the insurance industry throughout the marriage.  During the two year period immediately preceding the divorce, he owned a limited liability company and his own insurance company.   The Court found that his earning capacity increased steadily over the course of the marriage, and that at the time of trial, it was approximately $200,000.00 per year, including earned income, commissions and other unearned income.  The Court noted that the husband’s tax returns showed his gross income to be $180,427.00 for 2010.

The wife’s work history was brief and occurred mostly before the parties’ children were born.  The Court found that she was primarily responsible for the childrearing duties within the home.  At the time of trial, she had recently returned to school and was working toward achieving her associate’s degree.  During the divorce proceedings, the wife was living in the marital home which had a value of approximately $600,000.00, but was encumbered with a mortgage in the amount of approximately $675,000.00.

After considering all relevant statutory criteria, the Court ordered the husband to pay the wife unallocated alimony and child support in the amount of $6,000.00 per month for a period of ten years from the date of dissolution, followed by $3,000.00 per month for an additional period of five years.  The Court further ordered that in the event the marital home was sold, said amounts would increase to $7,500.00 and $3,500.00 for the applicable time period.  The Court designated the term of alimony as non-modifiable, and further held that the wife could earn up to $35,000.00 per year without triggering a downward modification of support.

Should you have any questions relating to alimony, or divorce proceedings generally, please feel free to contact Michael D. DeMeola, Esq. by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.