2007 Ct. Sup. 13374
No. FA 06-4005439Connecticut Superior Court Judicial District of New London at New London
July 27, 2007
MEMORANDUM OF DECISION
JOSEPH H. GOLDBERG, JUDGE TRIAL REFREE.
Both parties appeared and were represented by counsel. The guardian ad litem appointed on behalf of the children also appeared. All statutory stays have expired, and the court has jurisdiction.
Plaintiff initiated this action in January 2006, alleging that she and the defendant intermarried at New London, Connecticut on November 28, 1987; that her maiden name was Susan Dray; that the parties have resided in the State of Connecticut for at least twelve months prior to the institution of this action; that there were four minor children born to them during the marriage, three of whom are still minors, and they are Daniel R. Adams, Jr., born February 19, 1989, Rachel B. Adams, born June 18, 1991, Matthew D. Adams, born May 22, 1993 and Benjamin P. Adams, born July 25, 1999; that neither the State of Connecticut nor any municipality has contributed to the support of the parties to this action; and that the marriage has broken down irretrievably, without hope of reconciliation.
Plaintiff is a 42-year-old woman in good health and is a college graduate with a degree in accounting. She was employed after the marriage until the first child was born in 1989 and she has since been a “stay-at-home” mom with the exception for a brief period approximately five years ago when she taught algebra one evening per week for three hours at an hourly rate of $25.
At this time, Daniel, Jr. is preparing to enroll at Clemson University; Rachel and Matthew will both be attending high school; and Benjamin will be starting third grade this fall. The guardian ad litem reported to the court that all four children are very bright and well-adjusted. Plaintiff mother has expressed a desire to continue as a “stay-at-home” mom so that she can provide the same upbringing for Benjamin that she provided for the other three children. Defendant’s counsel contended that since the youngest child is now in school for a full day, mother should be seeking employment outside the home to CT Page 13375 contribute toward the family expenses. A vocational expert testified that due to the fact that plaintiff mother has been out of the labor market for approximately eighteen years, her earning capacity would be at an entry level of approximately $30,000 to $35,000 per year.
Defendant father is a 44-year-old man in good health and completed three years of college education. Since the outset of the marriage, he has been employed by Merrill Lynch as a financial investment advisor and has been very successful in this occupation, earning an average annual income of $550,000 over the past five years. In his financial affidavit, defendant indicated a gross weekly income of $10,366 and a net weekly income of $6,124. Plaintiff’s financial expert testified that defendant’s deduction for federal and state taxes were excessive in view of the tax deduction he received as a result of his paying an unallocated order of support and alimony. In spite of the difference of opinion as to the appropriate tax deduction, this type of income afforded the family a high standard of living while they were an intact family in one household. In November 2005, the parties separated and defendant father purchased a home on Village Drive, East Lyme, Connecticut, which is the same neighborhood where the family previously resided for approximately ten years. Even with this income, defendant testified that he was stressed out in attempting to meet all of the obligations of two households and the family expenses.
Plaintiff testified that the cause of the breakdown of the marriage was when she heard that the defendant had an affair with another woman and lied to her about the affair. Defendant admitted that he had an affair, but testified that the marriage was already breaking down prior to the affair due to his wife’s selfishness and the manner in which she treated him. The court concludes that both parties contributed to the breakdown of the marriage, but that defendant was more at fault for the eventual breakdown. At this time, both parties agreed that the marriage was broken down irretrievably without hope of reconciliation.
Plaintiff presently resides at 7 West Lane in the Old Black Point section of East Lyme, Connecticut which is the home the parties purchased in January 2005 for $1,600,000. After spending approximately $200,000 for improvements, the parties moved in this house in May 2005 and were an intact family at this location until November 2005 when defendant moved out and subsequently purchased his present residence at 26 Village Drive, East Lyme, Connecticut for $640,000. The mortgage balance for the 7 West Lane residence is $1,450,000 and the mortgage balance for the 26 Village Drive residence is $576,000.
The cost for maintaining the mortgage and real estate taxes for 7 West CT Page 13376 Lane is approximately $10,500 per month and the cost for maintaining the mortgage and real estate taxes for 26 Village Drive is approximately $4,100 per month. Plaintiff has expressed a desire to continue to be a “stay-at-home” mom and also to continue residing at 7 West Lane in Old Black Point. She testified that she wanted to provide the same upbringing for the youngest child that she did for the other three children and that she wanted to provide some stability for the children by remaining at the 7 West Lane residence.
The court heard testimony from two appraisers concerning the value of the Old Black Point residence at 7 West Lane. Both appraisers were well-qualified, but defendant’s appraiser was more familiar with the real estate in the East Lyme area and the Old Black Point area in particular. Plaintiff’s appraiser valued the residence at $2,200,000 and defendant’s appraiser valued same at $2,800,000. Considering the increase in the value of the plaintiff and defendant’s former residence at 218 Old Black Point Road in a relatively brief period of time, the court finds that the fair market value of the waterfront property at 7 West Lane to be $2,500,000.
The principal marital assets are the two residences at 7 West Lane, Old Black Point, East Lyme, Connecticut and 26 Village Drive, East Lyme, Connecticut; the retirement assets which were valued at $569,252 as of March 31, 2007; and the long-term incentive awards which had a cumulative total of $723,172 as of June 1, 2007. Plaintiff contended that the incentive awards should be subject to equitable distribution between the parties and defendant argued that the incentive awards were not in his name at this time and that such awards were only a future expectancy that may never be realized and were subject to forfeiture under certain conditions.
The court also finds that the net income of the defendant father exceeds the maximum of the Child Support Guidelines and the presumptive minimum child support would be $686 per week. The court further finds that there are grounds for deviation from the Guidelines due to the net income being substantially in excess of the maximum. Accordingly, the court will enter orders for unallocated alimony and support in this situation.
Having heard the testimony of the parties, the court finds that the allegations of the complaint have been proven and that the marriage is broken down irretrievably without hope for reconciliation. In entering orders for distribution of the marital assets, the court considered all of the relevant statutory criteria of sections 46b-81 and 46b-82 of Connecticut General Statutes and in particular considered “the length of CT Page 13377 the marriage the age, health, station, occupation, amount and sources of income, vocational skills, employability, estates, liabilities and needs of each of the parties and opportunity of each for future acquisition of capitol assets and income.” Further, the court considered the desirability of the custodial parent securing employment outside the home.
In accordance with the aforesaid considerations, the court enters the following orders:
1. A decree of dissolution may enter on the grounds of irretrievable breakdown of the marriage.
2. The parties shall share joint legal and physical custody of the four children (three are still minors) and the primary residence of the children shall be with the plaintiff mother with a parental access schedule in accordance with the Parental Responsibility Plan (Attachment 1)[*] executed and agreed upon by the parties. Said plan was developed with the assistance of the guardian ad litem for the children, was signed by the parties on May 8, 2007, and submitted to the court at the commencement of this dissolution hearing on June 21, 2007, and shall be incorporated into this judgment.
3. (a) The court concludes that the extraordinary expenses to maintain the 7 West Lane residence would deprive the family of maintaining their present lifestyle and would not serve the best interest of the children. Accordingly, the court orders that said residence be placed on the market immediately by listing same with an agreed upon broker. Defendant shall pay to the plaintiff the sum of $4,200 per week as unallocated support and alimony for a term of six months from the date of this judgment. Plaintiff is ordered to pay all expenses related to the residence, including, but not limited to, the mortgage, real estate taxes, insurance, utilities and maintenance and shall keep the premises in a neat and clean condition. In the event the residence is not sold by the expiration of six months, defendant shall continue paying $4,200 per week until the residence is sold, but not more than six additional months. He shall be repaid the amount in excess of the unallocated alimony and support order set forth in paragraph 4 from the net proceeds of the sale of the residence. Plaintiff is required to cooperate in the marketing and sale of the residence. The court will maintain jurisdiction of this matter regarding the sale of the residence.
(b) Upon the sale of the residence, after deducting all of the expenses of the sale, any encumbrances on said property and deducting any reimbursement to the defendant for any excess alimony and support CT Page 13378 payment, the net proceeds shall be disbursed as follows: the first $700,000 to the plaintiff and any additional proceeds over and above $700,000 shall be divided equally between plaintiff and defendant. Each party shall be solely responsible for any and all tax consequences attributable to their share of the net proceeds.
4. Upon the expiration of the six months, defendant shall pay to the plaintiff the sum of $2,700 per week as unallocated alimony and support for a term of five years. Thereafter, defendant shall pay to the plaintiff the sum of $2,000 per week as unallocated alimony and support for a further term of 5-1/2 years. At that time, the youngest child will have graduated from high school and the other three children will have graduated from college. Plaintiff will have had ample opportunity to engage in employment outside the home and increase her earning capacity. Said unallocated order for a total term of 11 years shall be non-modifiable as to term and amount except in the following circumstances:
(a) Plaintiff earns in excess of $60,000 of annual income (i.e., not from investment income or alimony) gross per year. The court utilized an annual earning capacity of $30,000 to $35,000 in establishing the unallocated support and alimony awarded.
(b) Defendant earns less than $450,000 gross per year.
(c) Cohabitation by plaintiff as defined by the Connecticut General Statutes.
(d) Termination of such order upon death of either party or the remarriage of the plaintiff.
5. (a) Defendant shall pay the medical insurance as is now in place for the benefit of the minor children so long as same is available to him as an incident of his employment. Such insurance shall include dental and vision coverage if said policies are available incident to defendant’s employment.
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(b) Defendant shall maintain the plaintiff on his medical insurance under the COBRA provisions as long as the law permits and the plaintiff shall pay the cost associated with said coverage, with the plaintiff solely responsible for any unreimbursed health-related expenses in that regard.
(c) The defendant shall provide the plaintiff with a complete benefits description of the medical and dental insurance policy and the plaintiff shall, at all times, be required to adhere to the provisions of any managed care features, utilization review programs, and other limitations and exclusions of coverage contained under the plan when seeking treatment for the children. The defendant shall cooperate with the plaintiff in the event of any claims made pursuant to the insurance program above provided pursuant to Connecticut General Statutes § 46b-84(e). The plaintiff shall have the right to process any claims in the defendant’s name and the defendant shall authorize the insurance company or health association to make all payments and drafts payable directly to the plaintiff for the benefit of the children, when appropriate. The defendant will, at all times, keep the plaintiff informed of the policy number and claims procedures.
(d) All unreimbursed medical expenses (including, but not limited to, psychiatric, psychological, optometric, orthodontic, etc.) for the children shall be divided 75% to the defendant, and 25% to the plaintiff. However, in the event that either party, either through willful misconduct or ignorance, triggers a plan limitation, exclusion or penalty (i.e., a reduction in plan reimbursement levels) as a result of (1) seeking medical treatment from an out-of-network health care provider; (2) utilizing a provider that CT Page 13380 charges above the plan’s reasonable and customary limitations, or (3) authorizing medical treatment that is otherwise expressly limited or excluded under the terms of the plan, that party will as such be responsible for paying 100% of such unreimbursed expenses. Nothwithstanding the above, the parties may mutually agree to allocate such out-of-pocket costs in another manner to assure that the best interests of the children are satisfied from a health perspective.
6. Defendant shall transfer to the plaintiff by a Qualified Domestic Relations Order one-half of the assets as of the date of judgment in the qualified retirement programs maintained for the benefit of the defendant at Merrill Lynch, namely the 401(k) Savings Investment Plan, the Employee Stock Ownership Plan (ESOP) and the Retirement Accumulation Plan (RAP). Said plans had a collective valuation as of March 31, 2007 in the amount of $569,252 and should be re-valued as of the date of judgment. Any outstanding loan from the 401(k) Plan shall be the sole responsibility of the defendant.
7. Defendant’s employer maintains a program of long-term incentive awards for its employees, namely the FA Capital Accumulation Award, the Wealth Builder Account and the Growth Award. Said accounts maintained for the benefit of the defendant had a value as of June 1, 2007 of approximately $723,172. None of these awards have vested in defendant’s name as of this date and none have actually been transferred nor will be transferred to the defendant until certain performance standards have been met and standards for length of service have been met. The court concludes that based on defendant’s past performance and the number of years that he has been employed by Merrill Lynch, his expectation in these awards was sufficiently concrete, reasonable and justifiable as to constitute a presently existing property interest for equitable distribution purposes. Accordingly, the value of these awards accrued as of the date of this judgment shall be divided upon distribution to the defendant and after the payment of the taxes by the defendant as follows: 25% of the net proceeds to the plaintiff and 75% to the defendant.
8. Defendant father shall maintain life insurance in an amount sufficient to cover the payments of unallocated alimony and support payments to plaintiff mother and sufficient to provide for the children until the youngest child (a) attains the age of 23, (b) completes college or (c) is not enrolled in a four-year degree program for a period of one year, whichever first occurs. Defendant shall name CT Page 13381 plaintiff and the four children as irrevocable beneficiaries for said purposes.
9. Plaintiff mother and defendant father shall pay the college expenses of the children as those expenses are defined by Connecticut General Statutes § 46b-56c as follows:
Defendant to pay 100% of the cost of the first year for Daniel; thereafter, he is to pay 75% the cost for the remaining three years and 75% of the cost for such college expenses for the other three children, and plaintiff is to pay 25% of such cost.
10. (a) Plaintiff shall be responsible for the lease of the 2007 Chrysler Aspen, including all expenses related thereto, and shall indemnify and hold defendant harmless from same.
(b) Defendant shall be responsible for the leases of the 2006 Mercedes E350 and 2005 Toyota 4Runner, including all expenses related thereto, and shall indemnify and hold plaintiff harmless from same.
(c) Defendant shall retain ownership of the 2003 E500 Mercedes and shall be responsible for the payment of all expenses related thereto, including the $30,000 loan to purchase said vehicle. He shall indemnify and hold the plaintiff harmless from any such expenses.
11. Plaintiff shall retain ownership of the funds in her checking and savings accounts at Bank of America, and defendant shall retain ownership of the funds in his checking and saving accounts at Merrill Lynch.
12. The escrow account in the amount of $160,000 from the Lussier sale shall be divided equally between the parties after deducting the payment in the amount of $4,583 to DDLC for work done at the 7 West Lane residence.
13. (a) Defendant shall retain ownership of the residence at 26 Village Drive, East Lyme, Connecticut and shall be responsible for payment CT Page 13382 of all expenses related thereto.
(b) Defendant shall be the sole owner of the loans owed by Barbara Brandeen and of the terminated Merrill Lynch Defined Benefit Pension Plan, and the Bayliner Trophy boat.
14. Each of the parties shall be solely responsible for the payment of the debts listed on their respective financial affidavits filed with the court at the commencement of this trial.
15. Plaintiff mother shall be entitled to claim the children as exemptions for both federal and state income tax purposes.
16. In the event of any dispute regarding personal property in the respective residences, such dispute shall be submitted to binding arbitration with the cost being borne equally by the parties.
17. The fees of the Guardian Ad Litem shall be paid as follows: 75% by defendant father and 25% by plaintiff mother. Such fees shall be paid within 30 days of this judgment.
18. The defendant is ordered to pay the sum of $12,500 towards plaintiff’s attorney fee
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