SURDEL v. SURDEL, No. FA 04 0083925 S (Aug. 17, 2005)

ROBYN SURDEL v. JOSEPH P. SURDEL, JR.

2005 Ct. Sup. 11996-au
No. FA 04 0083925 SConnecticut Superior Court Judicial District of Tolland at Rockville
August 17, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
GARY J. WHITE, JUDGE.

Facts
The court presided at a five-day[1] trial between the parties in the above-entitled action and finds the following facts based on the credible evidence admitted at trial, the admissions of the parties and the content of the court’s file.[2] The parties intermarried on September 12, 1992 in Davie, Florida. The plaintiff resided in this state at least twelve months prior to the filing of the complaint in this action. The parties have two minor children who are issue of the marriage: Joseph Surdel, III (born 6/1/93) and Nicolas Surdel (born 2/14/97). The parties’ marriage has broken down irretrievably. Neither the parties nor their children have been the recipients of public assistance benefits from the state or any town within the state.

The plaintiff is a forty-two year old high school graduate who suffers from an illness called fibromyalgia.[3] She receives medical treatment for her condition and takes medication to relieve her symptoms. The plaintiff has also had a substance abuse problem and is currently receiving counseling to help her cope with stress. The plaintiff’s health limits her ability to work, but is not so debilitating that it prevents her from supporting herself. During the course of the marriage the plaintiff worked as a bookkeeper/office manager for Boston Joe’s, Inc. (Boston Joe’s), the defendant’s home appliance repair business. In addition to the plaintiff’s work at Boston Joe’s, she worked in her own businesses including a website design business, a public television access show and a family/child oriented newspaper. The plaintiff created Nybor, LLC for the purpose of operating her various businesses and is its only member. The court notes that the plaintiff’s businesses derived a portion of their revenues through the plaintiff’s relationship with the Boston Joe’s. The plaintiff never actually earned more than $30,000.00[4]
in any calendar year from employment or from her business endeavors. The plaintiff sold her newspaper for approximately $10,000.00 and managed to CT Page 11996-av obtain clients for her other businesses separate from Boston Joe’s.

The defendant is forty-three years old, a high school graduate and the sole shareholder of Boston Joe’s. His health is generally good, although he admits that excessive alcohol use has been a problem in his life. He purchased an existing home appliance repair business in June 2000 and at that time gave it the Boston Joe’s name. The company employs approximately nine people, including the defendant,[5] and owns seven motor vehicles. The majority of Boston Joe’s business comes from referrals from appliance retail stores who sell appliances directly to the public. The company’s revenues have increased while the defendant has owned it, but he has had difficulty keeping employees with the requisite technical knowledge to service the customers. Boston Joe’s currently has a fair market value of approximately eighty thousand dollars ($80,000.00).

The parties jointly own the marital home located at 239 Buff Cap Road, Tolland, Connecticut. The property has a fair market value of $295,000.00[6] and is encumbered by a first mortgage in the sum of approximately $136,308.00 and a second mortgage in the approximate sum of $11,192.00.[7] Without regard to the second mortgage on the marital residence, the parties have approximately $158,692.00 in equity in the marital residence.

At the time of trial the parties reached a written parenting and child access agreement, dated May 18, 2005, and a separate written agreement, dated July 22, 2005, regarding certain personal property and the parties’ vacation schedule with their children. The court adopts the aforementioned agreements as orders and incorporates them into the judgment.[8] In addition and as per the request of the defendant in his Proposed Final Orders, dated May 17, 2005, the court orders that the primary residence of the children shall be with the plaintiff for educational purposes only.

The plaintiff pursued two pretrial motions at the time of trial: one alleges that the defendant failed to properly pay the plaintiff her customary salary from Boston Joe’s and the other alleges that the defendant improperly filed an individual federal income tax return for 2004.[9] At trial the defendant also pursued certain pretrial motions[10]
in which he alleges that the plaintiff violated a court order when she failed to pay the discover credit card bill; failed to pay Dr. Ann Phillips (Phillips) for preparing a psychological and custody evaluation; and failed to comply with other pendent lite court orders.

The plaintiff admitted at trial that she failed to pay her equal share CT Page 11996-aw of the $5,000.00 fee charged by the court-appointed Guardian Ad Litem (GAL);[11] failed to pay her equal share of the $4,000.00 fee charged by Phillips to prepare a psychological and custody evaluation; and failed to pay the discover credit card bill. Notwithstanding these admissions, the plaintiff did not willfully violate the court’s orders because she did not receive the customary Boston Joe payments from the defendant on a timely basis in order to meet her obligations.

The evidence shows that although the defendant eventually made his required Boston Joe payments to the plaintiff, several of those payments were late and adversely affected the plaintiff’s ability to meet her financial obligations. Since the plaintiff eventually received all the required Boston Joe payments, the defendant’s failure to make such payments on time ultimately did not cause any harm. The credible evidence also shows that notwithstanding a history of filing joint returns, the defendant unilaterally filed an individual federal and state income tax returns for 2004 and claimed both the minor children as dependants. He received a total of $13,562.00 in refunds.[12] Given the facts of this case, the court denies each party’s motions to the extent that such motions ask the court to find the other party in contempt for failure to comply with court orders.[13]

Orders
In issuing the following orders, the court has carefully considered the credible evidence, the totality of the circumstances and the relevant statutory criteria, including, but not limited to, General Statutes Sections 46b-81, 46b-82, 46b-84, 46b-62, 46b-56c and the Connecticut Child Support Guidelines.

1. Marriage:

The marriage is ordered dissolved.

2. Medical Insurance:

The defendant is ordered to pay the cost of medical insurance/dental insurance for the minor children. The defendant shall also be responsible for the payment of his own medical/dental insurance. The plaintiff shall pay for her own medical/dental insurance at COBRA rates as available through the defendant’s employment/ownership of Boston Joe’s. The parties shall be equally responsible for paying any medical/dental bills for the children which are unreimbursed by insurance.

3. Parenting and Custody of Children: CT Page 11996-ax

The court adopts as its order the written agreement between the parties entitled “Agreement of the Parties Regarding Parenting and Custody of Children,” dated May 18, 2005. In addition, the primary residence of the children shall be with the plaintiff for educational purposes only.

4. Child Support:

The defendant shall pay child support to the plaintiff in the amount of $100.00 per week for the benefit of the minor children. To the extent that this amount is a deviation from the amount required by the Child Support Guidelines, the court finds it to be appropriate based on the parties’ agreed-upon shared custody arrangement. This child support order shall be secured by an immediate wage execution.

5. Tax Returns and Dependency Exemption:

Each party shall be entitled to claim both children as dependents in alternate calendar years. The plaintiff shall be entitled to such exemptions in odd-numbered years starting in year 2005 and the defendant shall be entitled to such exemptions in even-numbered years starting in year 2006.[14] When one child ceases to be eligible as a dependent, the parties shall continue to alternate the use of the exemption with the plaintiff taking it in odd-numbered years and the defendant taking it in even-numbered years.

6. Life Insurance:

Each party shall maintain, at his or her own expense, one or more life insurance policies in a total amount of not less than $250,000.00[15]
and shall name the other party as irrevocable beneficiary of such policy or policies until the parties’ youngest child reaches his twenty-third birthday. Each party shall provide the other with written proof of the existence of such policy or policies upon reasonable request.

7. Alimony:

The defendant shall pay the plaintiff $600.00 per week in alimony. Such payments shall continue until the first of the following events: the plaintiff dies; lives with another unrelated adult under circumstances which permit the court to terminate alimony pursuant to General Statutes 46b-86(b); or the eighteenth birthday of the parties’ oldest child on June 1, 2011. This order regarding alimony is modifiable as to amount, but not as to term. CT Page 11996-ay

8. Division of Property and Debt:

a. The court adopts as its own the “Additional Stipulated Orders” submitted by the parties and dated July 22, 2005.
b. The plaintiff shall have sole ownership of the 2001 Dodge Durango free and clear of any claim by the defendant and shall be responsible for the payment of any and all taxes, insurance and other expenses related thereto.[16] The defendant shall pay the remaining loan balance due in connection with said vehicle and shall indemnify and hold the plaintiff harmless in connection with any third-party claims regarding such loan.
c. There is a list of disputed personal property outlined in Schedule A of the defendant’s Proposed Orders, dated May 19, 2005. The plaintiff shall have sole ownership of the items on that list which are shaded in blue. The defendant shall have sole ownership of the items on the list which are unshaded (white background). The individual items shaded in yellow shall be the sole property of the plaintiff and the multiple items shaded in yellow shall be divided evenly between the parties.
d. The parties are ordered to submit list of the “sports memorabilia” to the court within thirty days to facilitate the court’s division of the marital personal property.[17] Unless the parties reach a written agreement regarding definition and division of such property and the court approves such agreement, neither party shall dispose of, encumber or take any action with regard to such sports memorabilia and the court retains jurisdiction to divide such property after submission of the aforementioned list. If the parties fail to submit the aforementioned list to this court within the required thirty days, the court will hold a hearing limited to determining what personal property constitutes sports memorabilia and the value of such property.
e. The plaintiff shall transfer fifty percent (50%) of her shares in Insight Service Corporation to the CT Page 11996-bz defendant upon removal of the transfer restriction on said stock.
f. The plaintiff shall have sole interest and ownership in Nybor, LLC,[18] a Connecticut limited partnership company, free and clear of any claims to the ownership of such business by the defendant. The defendant shall have sole interest in Boston Joe’s free and clear of any claims to the ownership of such business by the plaintiff. The plaintiff shall immediately resign her employment position with Boston Joe’s. Each party shall retain sole interest in any personal and real property used or associated with Nybor, LLC and Boston Joe’s, respectively, except as otherwise ordered by this court. In addition, each party shall indemnify and hold harmless the other party in regard to debts or other liabilities in connection with their respective businesses, except to the extent otherwise required by this court’s orders.
g. The plaintiff shall retain funds in the “529 Plan” listed on her financial affidavit for the sole benefit of the minor children’s education, and shall not be used for any other purpose without the written consent of the defendant or, in the alternative, a further court order. The plaintiff shall give a written account of such funds to the defendant through bank statements upon reasonable request by the defendant. Each party shall retain sole ownership interest in the individual retirement account listed on his or her financial affidavit and each shall retain sole ownership interest in the bank accounts listed on his or her financial affidavit.
h. The plaintiff shall pay all debts listed on his financial affidavit, except the discover credit card debt. The plaintiff shall also be responsible for paying her fifty percent share of the fees due to the GAL and her fifty percent share of the fees due to Phillips. The plaintiff shall indemnify and hold the defendant harmless against third-party claims for the collection of the aforementioned debts and any other debts she is required to pay pursuant to the orders in this judgment. The plaintiff shall pay the amounts due and owing to the GAL and to Phillips within CT Page 11996-ba ninety days of judgment.
i. The defendant shall pay the debts listed on his financial affidavit, including, but not limited to, the discover credit card bill.[19] The defendant shall indemnify and hold the plaintiff harmless against third-party claims for the collection of the debts listed on his financial affidavit as well as other debts he is required to pay pursuant to the orders in this judgment.
j. The plaintiff shall forthwith quitclaim, at her sole expense, her right, title and interest in the marital residence located at 239 Buff Cap Road, Tolland, Connecticut to the defendant.[20] The defendant shall forthwith, but not later than ninety days from this judgment, refinance[21] the first mortgage on the marital residence. The defendant shall indemnify and hold the plaintiff harmless against third-party claims regarding both the first and second mortgage debts pending the refinancing of the first mortgage and subsequent to such refinancing. The defendant shall have sole right, title and interest in the marital residence free and clear of any claims by the plaintiff and shall indemnify and hold her harmless regarding all third-party claims in connection with maintenance, taxes and other expenses related to the marital residence.
k. In consideration of the plaintiff’s relinquishment of her right, title and interest in the marital home to the defendant, the defendant shall pay the plaintiff $114,325.00[22] within ninety days of the judgment.
l. In order to effectuate this order regarding the marital residence and all other orders pursuant to this judgment, the parties shall cooperate with each other by executing any necessary and appropriate documents.

9. Attorneys fees:

The defendant shall pay $5,000.00 toward the plaintiff’s attorney fees and the plaintiff shall be responsible for paying the balance. The CT Page 11996-bb defendant shall be responsible for paying his own attorney fees.

The Court

White, J.

[1] Trial proceedings occurred on all or part of the following days in 2005: May 18-20 and July 21-22.

[2] Each party has submitted, among other things, a financial affidavit as well as a child support guidelines worksheet.

[3] Those who suffer from fibromyalgia experience chronic fatigue in addition to joint and muscle pain.

[4] The plaintiff admitted at trial that she has a yearly earning capacity of at least $30,000.00.

[5] The defendant pays himself a salary and receives medical/dental insurance through the company. Since owning the business, the defendant has filed individual tax returns for himself and the plaintiff and corporate tax returns for Boston Joe’s.

[6] The parties submitted a written stipulation regarding the value of the marital residence.

[7] In a written stipulation, dated August 10, 2005, the parties agreed that as of July 13, 2005, the principle balance on the first mortgage was $136,308.43 and the principle balance on the second mortgage at or about that time was $11,192.35 for a total mortgage balance of $147,500.78. In his Proposed Orders, the defendant represents that the second mortgage on the marital residence is related to a business loan and asks that the plaintiff be held harmless against claims for payment of that mortgage.

[8] The court specifically notes that the parties agreed that it will retain jurisdiction pursuant to General Statutes Section 46b-56c to enter an educational support order at a later date.

[9] These motions are file #137 and #138, respectively.

[10] These motions are file #132 and #139. The court notes that although the defendant offered extensive testimony to support his claim that the plaintiff violated the court’s June 28, 2004 order regarding the use of approximately $17,000.00 in pendent lite alimony, there is no such claim in the aforementioned motions. Even if such motions, or others, can CT Page 11996-bc be construed to make such a claim, the court would still find that the evidence does not show that she willfully violated the court’s order.

[11] The defendant’s written motions do not claim that the plaintiff is in contempt for failure to pay her share of the GAL’s bill.

[12] The court is not ordering that the defendant file amended federal and state tax returns for 2004. In fashioning the final orders, the court, however, has taken into account that the defendant received a refund and did not share that marital property with the plaintiff.

[13] Even though the court does not find either party in contempt, the failure of each party to make the required pretrial payments has been factored into the final orders.

[14] The court intends that the plaintiff shall first be entitled to claim both child exemptions for tax year 2005 when she files her tax returns for that year in calendar year 2006, and that the defendant shall first be entitled to claim the child exemptions for tax year 2006 when he files his return for that year in calendar year 2007.

[15] Each party proposed an order that both be required to maintain life insurance and indicates on his or her financial affidavit that he or she currently has life insurance. Therefore, the court infers that each party is in fact insurable.

[16] The plaintiff shall pay the Durango property tax bill due and owing to the Town of Tolland. In addition, the plaintiff shall pay the $298.76 Carter Dodge repair bill.

[17] The court heard testimony from both parties about sports memorabilia, but neither party specifically identify what was meant by that term. The court invited the parties to submit a list of personal property that one or both included in the term sports memorabilia, but neither party did so.

[18] At trial neither party offered any evidence regarding the current value of this business.

[19] The plaintiff was responsible for paying that account pursuant to the court’s pretrial orders. The court has made an adjustment in its division of the marital equity which credits the defendant for prior payments on the discover card account as well as the requirement that he liquidate the balance on that account.

CT Page 11996-bd

[20] The plaintiff, through counsel, shall prepare the quitclaim deed at her own expense.

[21] The defendant shall be solely responsible for the payment of any costs necessary to refinance the first mortgage and to record the quitclaim deed he receives from the plaintiff.

[22] In ordering the payment of this amount by the defendant to the plaintiff the court has taken into account the fact that the defendant is retaining his interest in Boston Joe’s free and clear of all ownership claims by the plaintiff.

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