2007 Ct. Sup. 6357
No. FA 06-4021736SConnecticut Superior Court Judicial District of New Haven at New Haven
May 3, 2007
MEMORANDUM OF DECISION
STEPHEN F. FRAZZINI, JUDGE.
The plaintiff has filed this action to dissolve her 16-year marriage to the defendant. The parties appeared on February 16, 2007, for trial of this limited contested matter in which the principal issues in dispute are alimony and equitable division of property. They have agreed to share joint legal custody of their two children and for them to live primarily with their mother. They have also agreed to sell the marital home, but the plaintiff wants 60 percent of the proceeds while the defendant wants to split them equally. Finally, the plaintiff wants alimony of one dollar a year for ten years in case of possible changes in either of their situations in the future.
The parties were married on February 9, 1991, in Stratford, Connecticut. Both have lived in Connecticut for more than a year prior to the bringing of this action. Neither one has received any state or municipal financial assistance. Their two minor children are Samuel, born on June 25, 1997, and Mitchell, born on August 15, 2003. Both parties have completed the required parenting education program. No evidence was presented regarding any disputes between the parties about the parental access orders. Both parties agree that the father should have reasonable, liberal and flexible visitation, which the father has asked to be specified as including at least every other weekend from Friday at 5:30 p.m. to Sunday at 6:00 p.m. and every Wednesday from 5:30 to 8:00 p.m. Since there is not any evidence about conflict between the parents or difficulties either one has in taking proper care of the children, the court finds his request to be in the children’s best interest. The marriage between the parties has broken down irretrievably without hope of reconciliation. All statutory stays having expired, the court has jurisdiction to dissolve the marriage.
The wife blames the breakdown of the marriage primarily on financial problems and her husband’s intermittent work history. Both parties are college graduates and in good health. A registered nurse, she has a bachelor of nursing degree from the University of Bridgeport and is CT Page 6358 employed as the care manager at Laurel Woods nursing home, where she earns $960 per week gross and $764 net. She worked full-time during the marriage except for two maternity leaves. The husband has a bachelor’s degree in marketing from Central Connecticut State University. After college he worked for his father’s construction company in Fairfield for most of the time between 1986 and to his father’s death in 1999. He continued that business for a couple of years but found it too difficult to live in Guilford and run a business in Fairfield. In 2002 he bought a franchise for a bread delivery route, also in Fairfield, but found that job even harder than the managing the construction company. After 23 months, he sold the franchise and has worked as a construction sub-contractor since then. He acknowledged at trial that he has always had periods of unemployment between construction jobs, and his lack of income during these times was one of the wife’s complaints. Although his income in the construction trade varies from $1,000 to $1,500 per week when he is working, he is presently earning $35 per hour and earning $1,400 gross per week and $1,019 net.
After the parties married, they lived for six years in a home in Black Rock, Connecticut, that the husband had bought a few years earlier with funds given him by his parents. When they bought the marital home in 2003, the defendant kept the Black Rock property for another year, when he received approximately $168,000 in net proceeds from its sale. Although he spent some of that money on a boat and on a trailer in Ludlow, Vermont, the court finds credible his testimony that he used most of the proceeds to pay family bills during times he was not working. The boat and Ludlow trailer are a second area of contention between the parties. The husband views them as recreational opportunities for the entire family, but the wife testified credibly that she gains virtually no pleasure or enjoyment from either one.
For several years the parties did not file or pay income taxes. The wife recently filed separate tax returns for several of those years, but for one year she claimed all of the real property taxes and home mortgage interest. The court does not have enough evidence, however, to assess the financial impact on the defendant of his inability to claim either deduction for that year.
After considering all the testimony and exhibits offered, the court finds no greater fault on either party’s part for the breakdown of the marriage. Although the wife is certainly unhappy about her husband’s work and income history, her dissatisfaction does not mean he was responsible for the breakdown of the marriage.
The presumptive support amount under the child support guidelines is CT Page 6359 for the defendant to pay the wife weekly child support of $227. The husband has waived any alimony, but the wife seeks an order of one dollar per year for ten years. One of the factors set forth in General Statutes § 46b-86 that a court must consider “[i]n determining whether alimony shall be awarded, and the duration and amount of the award” is, “in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.” Since the parties’ older child was diagnosed only last December as having a learning disability that affects his ability to listen, pay attention and follow along in school, it is unreasonable to expect that either parent may yet know all of the dimensions of his disability or what may be required of them in the future. In view of the plaintiff’s responsibility as primarily residential custodian to care for the children and the possibility that Samuel may need the mother to work less and spent more of her time meeting his needs, the court finds, after considering all of the evidence and the statutory factors for awards of alimony, her modest alimony request reasonable.
All the property listed on the parties’ financial affidavits is marital property subject to equitable division. The wife asks for an 60-40 division of the marital estate, but after considering the statutory factors for equitable division of property and the evidence presented in this case the court concludes that, subject to the court’s orders below regarding allocation of liabilities, the parties’ property should be evenly divided, except for the wife’s engagement ring and the husband’s work tools, which should be awarded now to the party in possession. Their most valuable asset is the marital home, which they have agreed to sell, but the parties value it differently. The wife says it is worth $488,000 and the husband says it is worth $445,000. They also disagree on the amount of their equity, which she says is $258,000 but he says is less than $202,000. The parties did not provide sufficient evidence for the court to determine whose valuation is more likely correct, but the orders herein address that indeterminancy by awarding a 50 percent share of the net proceeds after an adjustment to take into consideration the differential value of other assets or liabilities awarded or assigned to each party. They also disagree on the value of the Ludlow trailer, the wife saying that it is worth $18,000 and the husband placing its value as $10,000. Since there is not any evidence providing a basis to determine which one is more likely accurate, the court will order it sold and the proceeds divided 50-50. The other properties and assets listed on each party’s financial affidavit is found to be worth the amounts listed there.
The debts of the parties require additional consideration based on the evidence here and the factors for equitable division of property and CT Page 6360 debt. The wife’s student loan debt and her tax preparation fee should be her own responsibility, and the husband should be responsible for his income tax liabilities. Although he claimed that the $5,000 he lists on his financial affidavit as a debt for a personal loan is owed to a family member for helping to pay their mortgage, he did not provide enough evidence for the court to find that claim credible. The husband’s financial affidavit also lists liabilities for a water lien and capital gains taxes. The parties should be equally responsible for capital gains tax due (but not for penalties and interest, which are owing because the husband failed to file the appropriate tax returns on a timely basis) from the sale of the Black Rock house since the proceeds from that sale were for family expenses or are otherwise considered in the court’s equitable division of property. Both parties should also be responsible for the water lien. The assets awarded to the husband will take into consideration that these orders assign him the obligation to pay these two debts. Thus, each party should be responsible for the liabilities listed on its last financial affidavit.
To effectuate the above, the court orders that the Ludlow trailer be sold and the proceeds divided equally, that the husband receive the first $7,277.52 of the net proceeds from sale of the marital home, and that the balance of the proceeds be divided equally between the parties.
ORDERS
The court has carefully considered all of the evidence, including the exhibits and the testimony presented, according to the standards required by law. The court has observed the demeanor of the parties and evaluated their credibility. After considering all the statutory and regulatory criteria for orders regarding custody, visitation, equitable division of property and debt, alimony, and child support, together with applicable case law and the evidence presented here, the court hereby enters the following orders:
1. Dissolution of marriage
The marriage of the parties, having broken down irretrievably, is dissolved.
2. Parenting orders
The parties will share joint legal custody of the minor children, who shall reside with their mother. The father will have reasonable, liberal, and flexible parenting time, which shall include at least every other weekend from Friday at 5:30 p.m. to Sunday at 6:00 p.m. and every CT Page 6361 Wednesday from 5:30 to 8:00 p.m.
3. Child Support
The defendant shall pay child support in the presumptive amount of $227 per week plus 44% of qualifying child care expenses and unreimbursed medical and dental expenses.
4. Tax exemptions
The parties will each be entitled to claim one tax dependency exemption for the minor children. After only one of the children is eligible to be claimed as a dependent for tax purposes, the parties shall annually alternate the exemption.
5. Health insurance
The parties shall each provide health and dental insurance for the minor children so long as such is available to either at a reasonable cost through its place of employment. If not available to either party, they shall cooperate to place the children on any public-funded health insurance for which the children are eligible. The provisions of General Statutes § 46b-84(e) are incorporated herein by reference.
6. Post-secondary educational support
The court shall retain jurisdiction to enter an order for post-secondary educational support upon motion or petition of either party.
7. Alimony
The defendant shall pay periodic alimony of one dollar a year for ten years. Alimony shall terminate upon the death of either party or the wife’s remarriage. Alimony may be modified or terminated, as the circumstances warrant, should the plaintiff cohabit with another as that term is defined by statute and has been construed by the courts.
8. Equitable division of property
a. The wife is awarded the 2002 Jeep Cherokee listed on her financial affidavit, her jewelry and clothing, and the bank accounts and deferred compensation she lists there.
b. The husband is awarded the vehicles and bank accounts listed on his CT Page 6362 financial affidavit, his tools, and the boat and trailer in Connecticut.
c. The trailer in Ludlow, Vermont, is ordered sold and the net proceeds divided equally between the parties. The court retains jurisdiction over the marketing and sale of the property.
d. The marital home is ordered sold. The court retains jurisdiction over the marketing and sale of the property. Both parties may remain in the marital home until it is sold, and shall split equally all mortgage, tax, insurance, and utility bills until the closing. The parties shall share equally the cost of any necessary repairs or maintenance on the marital home. The husband shall receive the first $7,277.52 of the net proceeds from sale of the marital home, and the balance of the proceeds shall be divided equally between the parties.
e. The parties shall divide the household furnishings and personalty from the marital home to their mutual satisfaction when the marital home is sold. If they cannot agree on such a division, they shall seek the mediation assistance of family services, but if still unable to agree thereafter each one shall submit a list to the court of property it wants, with a brief explanation as to why. The court reserves jurisdiction over division of this property.
f. Except as otherwise stated herein, each party shall be responsible for debts listed on its last financial affidavit and shall indemnify and hold the other harmless thereon.
CT Page 6363