2004 Ct. Sup. 1154
No. FA03-0348081 SConnecticut Superior Court, Judicial District of Danbury at Danbury
January 29, 2004
MEMORANDUM OF DECISION
SHAY, JUDGE.
The parties were married in Daytona Beach, Florida, on May 18, 1994. They are the parents of three minor children: Harrison John Croxford-Brock, born August 7, 1996; Oliver Croxford-Brock, born July 27, 1998; and Elizabeth Croxford-Brock, born April 16, 2001. All three minor children reside with the plaintiff wife (“wife”) in the marital home at 7 Windaway Drive, Danbury, Connecticut. The defendant husband (“husband”) moved out of the home on December 13, 2003, and he currently resides in Ellington, Connecticut. Both parties had been married before, and the husband has three minor children from that previous union.
The wife is 39 years old and received a degree on Computer Science in the United Kingdom. She and her doctor have been monitoring a suspicious lump in her breast for signs of cancer for more than a year, and at the time of trial was awaiting the results to determine whether or not surgery will be necessary. Otherwise, she is in apparent good health. In fact, she told the court that she rides a bicycle to work most days. Currently, she works part-time as a Service Agent for Fed-Ex and is paid $13 per hour, for between 17 and 20 hours per week. She is a participant in the group health insurance plan there, which covers the entire family, including the husband She is, in essence, working for the insurance coverage. In her words, she told the court that “her main job is being a parent.” The wife has worked virtually all her adult life, on either a full- or a part-time basis. She went to college on a Unilever scholarship. Her first job was as a Software Engineer and paid her the equivalent of $22,000. She later joined British Aerospace Corporation where she earned the equivalent of between $40,000 and $50,000 as a Customer Trainer. She had the use of a company car and is vested in a very small pension. The wife left her job with British Aerospace to join the husband in the United States shortly before their marriage. She was able to save enough money to buy a home in Britain. The home CT Page 1155 was sold about five years ago at a modest profit of $10,000. She told the court that she would eventually like to go back to work full-time once the children are older. Her hope would be to emphasize the training and marketing aspects of her previous job, since she feels that her computer skills are now out of date.
The husband is 46 years old and is also a college graduate. Currently, he works under a contract with the State of Connecticut as a consultant with On-Line Systems, Inc., and is assigned to a project with the Connecticut Judicial Branch at the rate of $38 per hour. He receives no benefits and is paid biweekly. He expects to be hired as a permanent employee of the Judicial Branch sometime soon, at an annual salary of between $55,000 and $60,000 per annum plus benefits. In March 2003, he was laid off from his previous job as a Systems Engineer with Tri Legiant Corporation which, for his last year worked, paid him $92,000 per annum with a 20 percent annual bonus. He looked for work, and the highest offer he had received was $75,000 per year, but that would have required a move to Virginia. At the time the parties met in Munich, Germany, he had been employed by Reuters, where he was paid $59,000. His overall health would appear to be good.
The principal asset of the parties is the marital home at 7 Windaway Drive, Danbury, which the parties purchased when they moved from Long Island in 1997. There is a first mortgage to Wells Fargo with a balance of about $160,000, as well as a home equity line of credit with a balance of approximately $25,000. The monthly carrying costs for the first mortgage, including real estate taxes is approximately $1,350, and the line of credit with a monthly payment of $250. The wife testified that the real estate has a fair market value of between $220,000 and $240,000. However, the husband believes that the property is worth $250,000. In addition, the wife offered testimony and evidence which would support the necessity for major repairs (Exhibit J) of at least $14,000, and which should be taken into account in arriving at a determination of fair market value.
The other family assets include a small bank account in the United Kingdom, and an equally small pension from British Aerospace which will pay the wife approximately $2.50 per month. The husband has a 401k plan with Putnam Investments having a current value, according to his affidavit, of $17,000, as well as an insurance policy with a cash value of $900 and some stock options which are currently “under water.” In addition, there is, CT Page 1156 relatively speaking, a significant amount of debt, most of which the husband testified is his responsibility.
Complicating matters is the fact that Oliver, the middle child, has special needs. He was diagnosed with “Pervasive Developmental Disorder, Not Otherwise Specified” which the wife refers to as Autism. He attends the pre-K program at the Hayestown Avenue public school in Danbury which is equipped to meet his educational needs. According to the wife, he is a very intelligent child who is unable to verbalize his wants and needs other than in short words and phrases. Because of her early morning work schedule, she needs to have a caregiver present in the home starting at 6:30 a.m. to put all the children on the bus or take them to school. That person spends about twenty hours on a regular basis and is paid $200-$250 per week. In addition, the wife hires some supplemental help for about five hours a week at $10 per hour. As is true in many such cases, one parent rejects the initial diagnosis, only later to come to agree with it. In this case, it was the husband He told the court that it took him a while to accept and that he believes that he is getting the proper attention in his current educational setting. The wife emphasized the importance of “consistency,” indicating that the child has difficulty adjusting to any changes in his routine, large or small, and that he requires “close supervision.” She would like him to remain in the marital home and in his current educational setting. It is very important that she maintain the current insurance through her current employer, since she has explored the Husky Program and found that Oliver’s doctors are not covered.
As to the breakdown of the marriage, the wife attributes the cause to the husband’s infidelity. She believes that the relationship had developed for a significant period of time before the day the husband left the family home. The husband denies that he had a sexual relationship with another woman before separation with the exception of one time in November 2002, however, the court did not find his testimony credible. In his testimony, he admitted to having been in communication with his paramour (a woman he had known in high school and later left his first wife for) for many months and taking a ski trip with her. Just before the final separation, he asked her to accompany him to Erie, Pennsylvania. She and the husband currently live together, and he testified that she does contribute financially to the household. He finds her to be more compatible. As to the breakdown, he testified that there was a “gradual change in the CT Page 1157 marriage,” which was marked with “poor communication” and a “lack of affection” on the part of the wife. Money has definitely been a factor from the beginning. In addition, he feels that during the marriage “both parties overspent.” Early in the marriage, when she was pregnant with Harrison, the wife was compelled to work at a series of part-time jobs in order to make ends meet, when the husband’s income was garnished to satisfy a child support arrearage in his obligation to his prior wife and children. The parties borrowed $5,000 from the husband’s family to meet the crisis, which has since been repaid. He testified that he currently enjoys no relationship with any of those three children. Later, when the husband lost his job, and obtained his current employment at a substantially lower salary, she continued to work part-time to maintain health insurance.
FINDINGS
The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes §§ 46b-56, 46b-56c, 46b-81, 46b-82, 46b-84, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:
1. That it has jurisdiction.
2. That the allegations of the complaint are proven and true.
3. That the marriage of the parties has broken down irretrievably, and that ample evidence exists that the husband is primarily at fault for the said breakdown.
4. That during the marriage, neither party has received any aid or assistance from the State of Connecticut or any town or political subdivision thereof.
5. That based upon the current net income of the parties as shown on their respective financial affidavits, the presumptive basic child support is $415 per week; and that the husband’s share is $342 per week; however, it is equitable and appropriate to deviate from the child support guidelines due to the extraordinary expenses for the care and maintenance of the minor child, Oliver. Child Support and Arrearage Guidelines Reg. § 46b-215a-3(b)(2); and that, as to said child, it is also equitable and appropriate that the court retains jurisdiction to CT Page 1158 enter appropriate child support orders post-majority pursuant t General Statutes § 46b-84(c).
6. That there are three children of the marriage, all of whom are under the age of twenty-three years; that there were no pendente lite orders of support; and that, after taking into consideration all of the relevant statutory factors, the provisions of General Statutes § 46b-56c should apply and that the court should reserve jurisdiction to enter appropriate educational support orders in the future.
7. That the real property located at 7 Windaway Drive, Danbury, Connecticut, has a fair market value of $226,000; that it is subject to a first mortgage to Wells Fargo Home Mortgage, Inc. having a current balance of approximately $165,000 and a home equity line of credit to Deitech having a current balance of approximately $25,000; and that the equity in said property is $46,000.
8. That throughout the marriage, until their separation, both parties made significant contributions to the acquisition, maintenance, and preservation of the family assets, including the real estate; that it is equitable and appropriate to consider the special needs of the minor child, Oliver, and the needs and expenses of the primary caregiver, in dividing the marital assets; and that the court has accorded significant weight to the present diminished earning capacity of the wife and the adverse impact that her caregiver responsibilities will have upon her opportunity to acquire capital assets and income in the future.
9. That evidence supports the finding that the minor child, Oliver, suffers from a disability called “Pervasive Developmental Disorder, Not Otherwise Specified.” Sheppard v. Sheppard, 80 Conn. App. 202, 208-09 (2003); that the wife and husband both refer to the condition as Autism; that the child has special educational needs which are being met by the Danbury School System; that it is in the best interest of the minor child that he continues to reside in the family home and to attend the Danbury School System; that the wife is the primary caregiver, and is most likely to continue in that role during the minority of the child; that it is also in the best interest of the minor child, Oliver, that the wife continues as the primary caregiver with minimal hindrance; that this role impacts her ability to obtain full-time employment outside the home at this time; and that under all the circumstances, for her to secure full-time CT Page 1159 employment outside of the home at this time would not be desirable. General Statutes § 46b-82.
10. That based upon the statutory factors, including the age, education, earnings, and work experience of the wife, a time-limited award of alimony is appropriate. Ippollito v. Ippollito, 28 Conn. App. 745, cert. denied, 224 Conn. 905 (1992) Milbauer v. Milbauer, 54 Conn. App. 304, 312-15 (1999); and that in making its award, the court has taken into consideration the division of marital property pursuant to General Statutes § 46b-81(c).
11. That the court entered pendente lite custody and visitation orders on April 21, 2003 and September 26, 2003; that said orders are in the best interest of the minor children; and that, except as otherwise set forth herein, said orders should become final orders under the terms of this decree.
ORDERS IT IS HEREBY ORDERED THAT:
1. The marriage of the parties is hereby dissolved, and they are each hereby declared to be single and unmarried.
2. The husband and wife shall have joint legal custody of the minor children, Harrison, born August 7, 1996; Oliver, born July 27, 1998; and Elizabeth, born April 16, 2001. The primary physical custody of the minor children shall be with the wife, subject to the reasonable, liberal and flexible visitation rights of the husband, as set forth in a pendente lite order of this court dated April 21, 2003, which is hereby incorporated herein by reference. Except as otherwise set forth herein, initial visitation with the husband shall be in accordance with a pendente lite order of this court dated September 26, 2003, which is hereby incorporated by reference herein, and at such other times as the parties may agree. The foregoing notwithstanding,
the wife shall be entitled to have one full weekend per month with the children, provided she gives the husband a minimum of three weeks prior notice. In addition, both parties shall be entitled to two consecutive weeks with the children during the summer school break. Each party shall provide the other with a complete itinerary and telephone numbers where the children can be reached. The major holidays shall be alternated, and for purposes of this order, Christmas Eve and Christmas Day shall be CT Page 1160 treated as separate holidays. The husband shall be entitled to Easter Sunday, July 4th, Thanksgiving Day, and Christmas Eve during even-numbered years and the wife shall have same on odd-numbered years. The husband shall be entitled to Memorial Day, Labor Day, and Christmas Day on odd-numbered years, and the wife shall be entitled to same on even-numbered years.
The parties shall consult with one another concerning all major issues involving the minor children, including but not limited to, health, education, and religious affiliation and training. In the event that parties are unable to agree upon any issue regarding custody and/or appropriate visitation, they shall first bring the matter to the Family Relations Office prior to seeking any determination by the Court. The foregoing notwithstanding, in the event that the parties are unable to resolve a dispute regarding the issue of the education, including tutoring, speech therapy, a social skills group, or other school-related programs, or medical treatment, including counseling or therapy, for the minor child, Oliver, including, but not limited to, the cost, need for, frequency of visits, choice of therapist or provider, the wife’s decision shall control.
3. The husband shall pay to the wife the sum of one ($1.00) dollar per year as and for periodic alimony, until the death of either party, the remarriage of the wife, or January 31, 2012, whichever shall sooner occur.
4. Commencing February 1., 2004, and weekly thereafter, the husband shall pay to the wife the sum of $375 as and for child support, until such time as the oldest child shall reach the age of eighteen years, at which time child support for the remaining children shall be adjusted in accordance with the then existing Child Support Guidelines or as a Court may otherwise direct, and in like manner at such time as the next oldest child shall reach the age of eighteen years. The foregoing notwithstanding, if any child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or their nineteenth birthday, whichever shall sooner occur, pursuant to Section 46b-84(b) C.G.S.
In addition, as and for additional child support, the husband shall pay the sum of $125 per week as and for the contribution toward the day care expenses of the minor children, for a total weekly support payment of $500. The foregoing notwithstanding, it CT Page 1161 is the intention of this order that the husband pay 50 percent of the present and future day care costs incurred by the wife for the minor children. The present order is based upon the current cost of day care for the minor children in the amount of $250 per week. The court expects these charges to change over time, and that the husband’s obligation shall be adjusted accordingly consistent with this order.
In addition, to the sums set forth above, as and for additional child support, the husband shall contribute to the extracurricular activities of the children, including sports programs, music/dance lessons, and summer camp for each of the children up to and including the summer prior to their senior year of high school in an amount not to exceed $1,000 per year per child, and any sums in excess of this amount shall be divided by the 25 percent to the husband and 75 percent to the wife.
5. As to the jointly-owned real estate at 7 Windaway Drive, Danbury, Connecticut, within Thirty (30) days from the date hereof, the husband shall convey his interest therein to the wife by means of a fully-executed Quitclaim Deed along with completed Conveyance Tax Forms. Thereafter, the wife shall have exclusive possession of the real estate and shall be responsible for the payment of all mortgages, liens, taxes, and insurance, and shall indemnify and hold the husband harmless from any further liability thereunder. The foregoing notwithstanding, it shall be the responsibility of the husband to make arrangements to bring the first mortgage current through February 1, 2004, and any past due monthly payments, including penalties and late fees, through and including January 2004, shall be his sole responsibility, and he shall indemnify and hold the wife harmless therefrom. The court hereby reserves jurisdiction to enter an order pursuant to General Statutes § 46b-66a in the event of the husband’s failure to comply with the order of the court.
6. Personal property shall be divided as follows:
A. Except as otherwise set forth herein, the home furnishings, including the children’s furniture, shall belong to the wife free and clear of any claims by the husband.
B. Each party shall be entitled to keep the automobile which they are currently driving free and clear of any claims by the other, and each party CT Page 1162 shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register same.
C. Except as otherwise set forth herein, each party shall be entitled to keep their respective savings, checking, and money market accounts free and clear of any claims by the other.
D. The husband shall be entitled to the following property free and clear of any claims by the wife:
1. Putnam Investment (401k);
2. Cash value of life insurance policy;
3. Clothing, personal effects, books, and papers;
4. Trilegiant stock options.
E. The wife shall be entitled to the following property free and clear of any claims by the husband:
1. British Aerospace pension;
2. Bank Account in the U.K.;
3. Clothing, personal effects, books, and papers.
7. The wife shall promptly notify her employer as to the change of marital status and shall cooperate with the husband in obtaining continuation health insurance coverage as provided by state and federal law. The husband shall be responsible for the payment of any premiums due for such coverage.
8. The wife shall maintain and pay for health insurance for each of the minor children so long as the husband shall be obligated to pay child support, for so long as such insurance shall be an incident of her employment and available to her at reasonable cost. Unreimbursed medical, dental, orthodontic, optical, pharmaceutical, psychiatric, and psychological expenses for the minor child, shall be divided by the parties, 50 percent by the husband and 50 percent by the wife.
The provisions of General Statutes § 46b-84(e) shall apply. CT Page 1163
9. The husband shall maintain the existing Prudential Life Insurance policy in the amount of $100,000, and shall name the wife and three children as equal beneficiaries thereof for so long as he has an obligation to pay alimony and/or child support (including any educational support orders) under the terms of this decree.
10. Except as otherwise set forth herein, the parties shall each be responsible for the debts as shown on their respective financial affidavits, and they shall indemnify and hold each other harmless from any further liability thereon. In particular, the husband shall be responsible for the American Express, Meineke, Chase, CompUSA, and Wells Fargo (a personal loan in addition to the mortgage) debts as shown on his financial affidavit.
11. The court hereby reserves jurisdiction to enter an educational support order pursuant to General Statutes § 46b-56c (formerly P.A. 02-128).
12. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
13. Commencing with the tax year 2003 and thereafter, the husband shall be entitled to the tax exemption for the minor child, Harrison, and the wife shall be entitled to the exemption for the minor children, Oliver and Elizabeth. Each shall promptly execute the necessary documentation and deliver same in a timely manner to the other for filing with the IRS and/or state taxing authority on an annual basis.
14. The Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52-362 in order to secure the payment of the alimony order.
15. Financial matters being in dispute, the sealing of the financial affidavits of the parties as on file is hereby terminated pursuant to Practice Book § 25-59A(h).
THE COURT,
SHAY, JUDGE. CT Page 1164