2005 Ct. Sup. 13272-l
No. FST FA 04 0201086Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
September 28, 2005
MEMORANDUM OF DECISION
STANLEY NOVACK, JUDGE TRIAL REFEREE.
The parties intermarried on April 29, 1989 at Lake George, New York. The plaintiff (“wife”) has resided continuously in Connecticut for six years and all statutory stays have expired. Therefore, this court has jurisdiction. There is one child issue of the marriage, Melanie, born August 23, 1989. The evidence indicates that the marriage has irretrievably broken down. Judgment may enter dissolving the marriage on that ground.
The wife is 57 years old. She reports her health to be generally good. She has a mild hearing loss in both ears and high blood pressure which is controlled by medication. Neither condition is disabling. She completed a two-year program in accounting at Manhattan Community College. She worked in the fashion industry for 15 years until 1980. She had no gainful employment thereafter except for a period of self-employment that ceased in 1988. Thereafter, by agreement of the parties she stayed home and filled the role of homemaker and parent.
The defendant (“husband”) is 54 years old. He has some hearing loss in one ear, but otherwise his health is good. He has an impressive educational background. He has a Bachelor of Science degree and holds two Master degrees, one in Finance. He was last employed by a private investment management company as an investment manager of fixed income accounts. He was employed there for 15 years, until September 2001. He has been unemployed since that time.
From the husband’s viewpoint this was an unhappy marriage for a long time. The only problem was, according to the wife, he never shared that opinion with her nor gave her an opportunity to work on making adjustments in their relationship. The husband’s failure to communicate with his wife and his clandestine behavior resulted in the breakdown of this marriage. He must assume the major responsibility for its failure.
The court has carefully considered the criteria set forth in CT Page 13272-m Connecticut General Statutes §§ 46b-56, 46b-62, 46b-81, 46b-82 and 46b-84
in reaching the decisions reflected in the orders that follow.
The following orders may enter:
I CUSTODY
The wife and husband shall share joint legal custody of their minor child, Melanie. The wife shall have primary physical custody, and the husband shall have reasonable, flexible and liberal visitation with his daughter.
The husband shall provide the wife and child with reasonable notice of his intention to visit with the child.
The current relationship between father and child is strained. It is in the child’s best interest to have her problems resolved. The court urges both parents to cooperate in taking appropriate steps to encourage their daughter to reestablish a relationship with her father. The employment of a family therapist is recommended.
During the child’s minority, if either parent wishes to relocate her or his residence outside Fairfield County, she or he shall give the other no less than sixty (60) days advance written notice of her or his intention to do so.
II ALIMONY and CHILD SUPPORT
The husband is currently unemployed. He last worked in 2001. The wife claims that the husband voluntarily left his job, and therefore, a support obligation should be based on his earning capacity which should be found to be $360,000 per year gross income. The wife does not dispute the fact that for the last year that her husband has intensely sought employment but has been unsuccessful to date.
The court finds that the husband’s leaving his last employment was not voluntary but necessary under the circumstances. The husband’s testimony was corroborated by his superior at his employer, the Capital Group. The husband’s work results had been found unsatisfactory for a number of years. The investment portfolio assigned to him for management had been dramatically reduced which impacted his earnings. Management was on the verge of terminating his employment. Aware of the “handwriting on the wall,” the husband negotiated the best deal he could by agreeing to separate from his employment in 2001. CT Page 13272-n
The husband did not immediately seek new employment and offered various reasons for not doing so. However, he has persuaded the court that for the last two years he has attempted to find work, and in the last year has been actively pursuing job opportunities.
Earning capacity is an appropriate consideration for basing support orders when unemployment results from the voluntary action of leaving employment. Miller v. Miller, 181 Conn. 510 (1980). The court declines to impute an earning capacity to the husband because of its conclusion that his leaving his last job was not voluntary. Also, despite honest efforts on his part, the husband has been unsuccessful to date in finding a new position, and no evidence was produced that there were jobs available for him.
Although a meaningful order of periodic alimony and child support is appropriate in this case, the court finds it is unable to do so at the present time. It is optimistic that if the husband continues to seek employment he will be successful in the near future. Upon finding employment, he shall notify his wife within ten days. At that time, the wife may request a hearing to modify the orders entered herein. If no employment is found earlier, the court will review the husband’s efforts to find employment in six months from the date of judgment.
The following orders may enter:
1. Commencing October 1, 2005, the husband shall pay to the wife as periodic alimony the sum of one dollar ($1) per year. Payments shall continue until the death of either party or the wife’s remarriage, whichever event first occurs. This order is subject to the provisions of Section 46b-86(b) of the Connecticut General Statutes.
2. Although the parties have substantial assets, most of them are illiquid. This presents problems for them because of their needs for living expenses and carrying charges on the real property holdings. Therefore, as a stop gap measure until either employment is obtained or one or more of the real properties are sold, the court orders the following:
A. The husband, on behalf of himself and his wife, shall manage an escrow fund, consisting initially of the balance of the Fidelity Rollover IRA currently in his name and which has approximately $180,000 in the account.
1. Commencing October 1, 2005 and monthly thereafter until further CT Page 13272-o order of the court, the husband shall make disbursements from the escrow fund to meet the needs and expenses of the parties in the following amounts:
a. Payment directly by him of the expenses ordered at the pendente lite hearing (Black, J.), including the costs for the maintenance and upkeep of all five real properties owned by the parties. These total expenses have been found to be approximately $32,000 per month.
b. Disbursement of $6,000 per month to the wife for her personal needs. This shall not be considered as a periodic alimony payment.
c. Disbursement of $6,000 per month to the husband for his personal needs.
2. If the husband finds employment before the escrow funds are exhausted, the court will review and revise this order, as needed, at the hearing for modification of the support orders issued herein.
3. If the escrow funds approach exhaustion and neither the marital residence or the 44 Glen Road property has been sold, then to replenish the fund the parties shall borrow against the equity of either property in order to continue to make the payments stated above, including the costs of such new borrowing. The parties shall each be responsible for the repayment of one-half of any loans obtained.
4. If either the marital residence or the 44 Glen Road property is sold before the husband finds employment, then as of the last day of the month following the closing of title in reference to either sale, this order of the use of the escrow fund shall terminate and any balance in the escrow account shall be equally divided between the parties.
5. If the Glen Road property is sold first and the husband has not found employment, then until the residence sells, the parties shall equally share the following expenses attributed to the marital residence: mortgage, real estate taxes, Deer Park Association dues, sewer service and homeowner’s insurance.
6. If the marital residence is sold first, the wife shall pay any carrying charges for the Glen Road property, using the rent received, if any, for such charges. CT Page 13272-p
7. The husband shall provide an accounting immediately following the sale of either property or every three months, whichever first occurs, detailing expenditures from the Fidelity Rollover IRA account or from any borrowing against the equity of the marital residence and/or 44 Glen Road.
8. The court reserves jurisdiction to effectuate this order concerning the use of the escrow fund in the event any disputes arise over its implementation.
IIA. Child Support
Although neither party presently has earned income, the husband has appropriately under the circumstances, recognized his responsibility and has offered to contribute for the support of his daughter the sum of $1,500 per month.
1. Commencing October 1, 2005 and monthly thereafter until further order of the court, the husband shall pay to the wife as child support the sum of $1500 per month. This order may be modifiable when the husband becomes employed.
If payment of this order is made from the joint escrow fund account then the husband shall pay to the wife a sum equal to the total withdrawals made for child support from his share of the proceeds of sale of the residence or 44 Glen Road, whichever first occurs.
IIB. Arrearage
There is an arrearage due of $800 for automobile repairs incurred and paid for by the wife. This expense was the husband’s obligation under the pendente lite order. (Black, J.) The husband shall reimburse the $800 to the wife from the husband’s share of the proceeds of sale of either the marital residence or 44 Glen Road, whichever first occurs.
III MEDICAL INSURANCE and EXPENSES
1. The husband shall pay for and maintain the child’s medical, dental and prescriptive drug insurance comparable to the existing coverage until she reaches the age of majority pursuant to statute.
The parties shall equally share, until further order of the court, the cost of all unreimbursed medical, dental, optical, surgical, hospital, psychiatric, psychological, nursing and any prescriptive drugs expenses for the benefit of the child until she reaches the age of majority. CT Page 13272-q
At trial, the husband voiced concern over an orthodontics procedure recommended for the minor child. The husband shall discuss with the orthodontist the nature of the work and the cost involved. If the parties are unable to agree on whether to authorize the treatment, they may request a hearing as to whether it is a reasonable and necessary expense.
Section 46b-84(e) of the Connecticut General Statutes shall apply.
2. The husband shall cooperate with the wife for her to obtain COBRA coverage under the husband’s health insurance. All costs shall be paid by the wife.
Until a modification hearing is held as to periodic alimony or the wife receives her share of proceeds from the sale of the marital residence or 44 Glen Road, premium payments of the wife shall be paid from the fund established under Article II above.
The wife shall reimburse the husband all sums so provided by the fund when the fund ceases making payments.
IV POST-MAJORITY EDUCATION SUPPORT
Both parties expressed the desire that their minor child attend an institution of higher education upon graduating from high school. However, since the husband is currently unemployed, it is difficult to address allocation of financial responsibilities at this time. The wife’s request to make alimony orders incorporating future educational costs would amount to speculation and be contrary to the intentions of the statute involved.
The court reserves jurisdiction on this issue, and at the appropriate time, either party may petition the court for a hearing pursuant to General Statutes Section 46b-56(c).
V REAL PROPERTY
1. The husband shall quit claim to the wife all his right, title and interest in the real property located at 22 Eel Point Road, Nantucket, MA, subject to the existing first mortgage, which she shall assume and indemnify and hold harmless the husband from any liability thereon. The wife shall at her expense prepare the transfer documents. The wife shall after the entry of this order have exclusive possession of the property. CT Page 13272-r
All costs associated with the property shall be continued to be paid from the fund referred to in the prior order herein until either the first day of the month succeeding the wife’s receiving her share of the proceeds of sale of the marital residence or 44 Glen Road, whichever first occurs, and at that time the wife shall be responsible for said costs and thereafter shall indemnify and hold the husband harmless from the same.
In the event the husband finds employment before either property is sold, and as a result thereof the use of the escrow fund is terminated, the wife’s obligation to assume all the costs involving this property may be accelerated by the court at the hearing to modify support.
A. As an assignment of property, at the time of transfer of this property, the wife shall pay to the husband the sum of $450,000 for his interest in the property. The wife shall sign a promissary note in that amount providing for no interest. The note shall be payable at the time of the closing of the sale of the marital residence. The note shall be secured by a mortgage on the Nantucket premises and be subject to the first mortgage presently thereon. The note and mortgage shall contain the usual provisions used by lending institutions in Fairfield County.
2. The husband shall transfer to the wife all his right, title and interest in the stock, shares, or other interest of whatever nature and kind to the cooperative apartment at, and commonly known as, 200 Central Park South, Apt. 19K, New York, NY. The wife at her expense shall be responsible for the preparation of the transfer documents.
All costs associated with the property shall be continued to be paid from the fund referred to in the prior order herein until either the first day of the month following the wife’s receiving her share of the proceeds of sale of the marital residence or 44 Glen Road, whichever first occurs, and at that time the wife shall be responsible for said costs and thereafter shall indemnify and hold the husband harmless from the same.
In the event the husband finds employment before either property is sold, and as a result thereof the use of the escrow fund is terminated, the wife’s obligation to assume all the costs involving this property may be accelerated by the court at the hearing to modify support.
3. The wife shall transfer to the husband all her right, title and interest in and to the stock, shares, or other interest of whatever nature and kind in the cooperative apartment at, and commonly known as, 200 Central Park South, Apt. 19J, New York, NY. The husband at his expense shall be responsible for the preparation of the transfer documents. CT Page 13272-s
Until the husband receives his share of the net proceeds of sale of the marital residence or 44 Glen Road, the costs and obligations affecting this property shall be paid from the same fund referred to herein that is paying all of the other carrying charges of the properties of the parties. Thereafter, the husband shall indemnify and hold the wife harmless on all obligations, encumbrances and future costs affecting the property.
In the event the husband finds employment before either property is sold, and as a result thereof the use of the escrow fund is terminated, the husband’s obligation to assume all the costs involving this property may be accelerated by the court at the hearing to modify support.
4. The parties jointly own two pieces of real property. They are located at 44 Glen Road, Greenwich and 16 Woodside Road, Greenwich. The wife’s mother currently resides in the Glen Road property, and the wife occupies the Woodside Road residence.
A. From and after this date, the parties shall own both premises as tenants in common.
B. Both properties shall immediately be listed for sale to obtain the highest possible price with a broker mutually agreed upon. Unless they agree otherwise, Attorney Jeremy Kaye shall handle the sales.
C. Absent mutual agreement, the parties shall follow the advice of their broker regarding any expenditures for necessary “fix up” expenses to either property in order to maximize the sales price. The parties may jointly borrow against the equities of the properties to finance the costs of repair.
D. The wife shall be solely responsible for arranging the relocation of her mother from the Glen Road property prior to the closing of sale.
E. The wife shall have exclusive possession of the marital residence from this time until the closing of title of sale. Until the use of the escrow fund is terminated either by order of the court or by the sale of the residence or sale of 44 Glen Road property it shall be used to continue to pay the expenses of the marital residence as previously ordered at the pendente lite hearing. (Black, J.)
F. The court reserves jurisdiction in order to effectuate its judgment to resolve any disputes involving the sale of either property, including but not limited to listing broker, listing price, sales price, fix-up CT Page 13272-t needs and costs and claims of lack of cooperation in furthering the sale.
G. Upon the sale of each property, the following shall occur:
1. Payment of the brokers’ commissions; (if property sold with or without a broker, any fee received by a party in reference to the sale will be shared with the other party);
2. Payment of usual customary closing costs including town and state conveyance taxes;
3. Payment of capital gains taxes;
4. Payment of closing attorneys fees;
5. Payment of outstanding mortgages and loans made for fix-up expenses or carrying charges;
6. The balance of the proceeds shall be divided equally between the arties.
VI PERSONAL PROPERTY
1. Automobiles
A. The wife is awarded the 1999 Ford Explorer and the 1997 Jeep Grand Cherokee. The husband shall execute all necessary documents to transfer title of the vehicles.
B. The husband is awarded the 1977 Firebird, the 1995 Saab 9000 CSE and the 1972 BMW.
2. Miscellaneous Property
A. The husband is awarded the J24 sailboat; his personal jewelry; the 1945 Antique Ivory Carvings, camera and Antique Italian Desk.
B. The wife is awarded her personal jewelry; the Visa points and Discover Cash Back Bonus.
3. Furniture and Furnishings
A. Marital residence CT Page 13272-u
All contents are awarded to the wife, except the following which are awarded to the husband:
a. One burgundy leather sofa in the basement;
b. One stereo set with speakers;
c. One short wave radio and antenna;
d. Two seat cushions for the J boat;
e. One men’s bicycle;
f. Pool table, television and bench press workout machine in the basement;
g. The husband’s clothing and personal effects.
B. 44 Glen Road
All the furnishings and possessions of the parties are awarded to the wife.
C. 200 Park South
All the furniture currently in both apartments (K and J) are awarded to the husband except the following which are in Apartment 19J are awarded to the wife:
a. One stereo and speakers;
b. Gold champagne glasses;
c. Art deco table lamp;
d. The wife and daughter’s personal effects and clothing.
D. Nantucket, Massachusetts
All the furnishings are awarded to the wife, except the blue check fabric chair, the espresso machine and the husband’s personal effects are awarded to him. CT Page 13272-v
1. Artworks
A. The husband is awarded the following items of artwork:
a. Cromartie — Lighthouse painting;
b. Appleton — Sailing engraving;
c. Webb — Hunting Dogs engraving (2);
d. Small oval table;
e. Wooden Mallard decoys;
f. Steinway studio upright piano.
B. The wife is awarded the following items of artwork:
a. Salvadore Dali Don Quixote bronze;
b. Collard — Lighthouse painting;
c. Collard — Fishing Boat;
d. Kennedy — games prints (5);
e. Vanity Fair — Polo prints (4);
f. Salvadore Dali’s — Noah’s Art Prints (2);
g. Gerber Darsy paintings (Pair)
h. Bamboo Gallery prints (4);
i. Antique Wooden sign;
j. Brunswick billiard table.
VII BANK ACCOUNTS and BROKERAGE ACCOUNTS
A. The wife shall retain her Wachovia bank accounts and is awarded the joint Chase bank account and her Fidelity investments brokerage account. CT Page 13272-w
B. The husband shall retain his JP Morgan Chase checking account, his Citibank checking account and his Fidelity Investment brokerage account.
VIII RETIREMENT ACCOUNTS
A. The wife shall retain her Fidelity IRA account.
B. The husband shall retain his Fidelity Traditional IRA Account.
C. The husband shall retain title to his Fidelity Rollover IRA Account. He shall use it for the purposes referred to in Article II herein for the equal benefit of himself and his wife.
IV CUSTODIAL ACCOUNTS
Each party shall remain custodian of the custodial accounts he/she holds for the benefit of the minor child, Melanie.
X. NON-CASH DISTRIBUTIONS A. Restricted Security Form
1. 38 Shares Brocade Communication Systems;
2. 57 Shares Brocade Communication Systems;
3. 102 Shares Vitesse Semiconductor.
B. Security Form
1. 20 Shares Cisco System;
2. 19 Shares Cisco System;
3. 264 Shares Ebay;
4. Venture Capital Fund, 1999;
5. Venture Capital Fund, 2000.
The husband is the holder of the securities listed above. The wife shall hereafter be the beneficial owner of fifty (50%) percent of each of the awards. Subject to any legal restraints upon the husband, within seven business days after written instruction from the wife, the husband shall exercise, in accordance with the wife’s written instructions, any CT Page 13272-x and all of the wife’s interests. The wife shall have all options that are available to the husband. The husband shall pay to the wife the entire “net proceeds” that result from the exercise of the rights. “Net proceeds” shall mean gross proceeds less actual costs if exercised less federal, state and local income taxes, with the appropriate amount of taxes determined by the husband, subject to review by the wife.
The court reserves jurisdiction to resolve any disputes in connection with this Article in order to effectuate the purposes of this order.
XI DOGS
The two dogs currently in the marital residence are found to be owned by the parties’ daughter, Melanie, as a result of a gift from her parents. Therefore, the court has no authority to award ownership of either dog to either parent.
XII ORIENTA BEACH CLUB
If permitted by the by-laws of the Club, the current house membership shall be transferred from the husband to the wife who shall thereafter be solely responsible for all dues, assessments and monthly charges.
XIII AOL ACCOUNT IN MARITAL RESIDENCE
The husband shall promptly notify the AOL provider for the service in the marital residence to change the account name to that of the wife.
XIV LIABILITIES
Each party has scheduled debts outstanding on her/his financial affidavit presented at trial. Responsibility for payments shall be as set forth herein. The amounts stated have been rounded off.
A. Wife’s affidavit:
CT Page 13272-y The wife shall be responsible for the payment of all the credit card debts. The husband shall contribute his share of this obligation in the amount of $15,000. This represents, the approximate balance due on credit cards at the time of the pendente lite hearing. The husband shall pay this amount to the wife from his share of the proceeds of the first real property sold at the time of the closing of title.
2. For repayment to Melanie’s UGMA account at the time of the closing of title of the first real property sold, each party shall each repay the account the sum of $1000.
3. The wife shall be solely responsible for the payment of the remaining debts on her financial affidavit.
B. Husband’s affidavit: 1. NY City/State Taxes
Each party shall pay for one-half of this tax obligation. The present balance is $14,370. This may be subject to adjustment for another tax liability paid which would be a credit against the debt. The adjusted balance, including interest and penalties shall be paid from each party’s share of the proceeds received when the sale of one of their real properties occurs.
2. Landscaper
The balance due for services rendered is disputed. The balance claimed is $1,852 and $502 thereof if presently questioned by the husband. The parties shall share equally the agreed-upon amount due and each shall make payment when a property is sold from his/her share of the proceeds.
3. Real Property Taxes due on Residence and Glen Road properties. Each party shall pay one-half of the outstanding balances due as shown in his/her affidavit. Payment shall be made for his/her share of the proceeds on each property when it is sold. The remaining property taxes due on sale in the amount over and above the current figures shall be treated as an adjustment and shared equally.
4. The husband shall pay the monthly bills outstanding in the amount of $8,252 and may use the Fidelity rollover IRA account escrow fund for payment.
If either party pays more than her/his share of the liabilities before a property is sold from funds other than the escrow fund, CT Page 13272-z she/he shall be reimbursed for the excess amount paid at the time the proceeds of sale of a property occurs.
XV COUNSEL FEES
After a hearing the court (Black, J.) awarded the wife counsel fees pendente lite in the amount of $38,258. The husband appealed that order, and it is still pending.
After trial, the wife has requested this court to award her counsel fees in an amount identical to the pendente lite order.
Both counsel believe that any order of counsel fees ordered by this court will replace the pendente lite order and render the pending appeal moot. This court does not agree. It believes that the pendente lite order was based on the evidence presented at that hearing and involved consideration of other factors than those disclosed at trial. The husband should be permitted to pursue his right to appeal for a determination of the issue.
This court orders that as of this time, the husband owes an arrearage of $38,258 for the pendente lite order of counsel fees, subject to the decision to be rendered by an appellate court.
The court has considered the wife’s request for counsel fees independent of the pendente lite order, but mindful of its effect, after a consideration of the criteria set forth in Sections 46b-62 and 46b-82
of the Connecticut General Statutes.
The court finds that the wife’s request for counsel fees should be granted. The husband shall pay to the wife the sum of $38,258 as a contribution towards her counsel fees. The court finds that a total denial of the wife’s claim for counsel fees would unduly impair and undermine the other financial awards entered.
This award shall be due only if the husband withdraws his current appeal of the pendente lite order or if his appeal is granted. Otherwise, an inequitable result would be obtained. CT Page 13272-aa
The payment of this order shall be made from the husband’s share of the proceeds of the sale of either the marital residence or 44 Glen Road, whichever first occurs. If the husband’s appeal is not withdrawn or ruled on at that time, said sum shall be held in escrow by the husband’s counsel until either event occurs.
Judgment may enter accordingly.
NOVACK, J.T.R. CT Page 13272-ab