2003 Ct. Sup. 6389
No. FA98 037 75 73 SConnecticut Superior Court, Judicial District of Fairfield at Bridgeport
May 7, 2003
MEMORANDUM OF DECISION
BASSICK, JUDGE TRIAL REFEREE.
This is the second trial in an action for dissolution of marriage. The first judgment was entered on June 11, 1999, before the Honorable Stanley Novack in Stamford. After numerous motions for contempt, motions for modification, an appeal and motion to terminate the stay, and memoranda of decisions, the matter came on for hearing on July 19, 2001, before Brennan, D., J. on defendant’s motion to reopen and for a new trial. The motion to reopen and for a new trial was granted on August 27, 2001.
Since the commencement of this action in March 1998, there have been numerous court appearances both in Stamford and Bridgeport Superior Courts with hearings before Novack, J., Harrigan, J., Thim, J., Hiller, J. and Brennan, D., J. There have been one hundred and thirty (130) pleadings filed. The case has been to the Appellate Court (23 Conn. App. 909, June 2001) and a petition for certification to the Supreme Court. There has been an additional appeal to the Appellate Court appealing the court’s decision that the New Canaan real property be sold immediately. This appeal stayed the court’s order of sale. The appeal was dismissed.
The parties were married on July 1, 1970. There have been two children issue of the parties: Emily who is now age 31 and Daniel who is now age 21. The matter came on for trial in Stamford before Novack, J. on May 28, 1999. A decree of dissolution of the parties’ marriage was entered on June 11, 1999.
The plaintiff is 57 years of age and the defendant is 53 years of age. The plaintiff continues to reside in the family home in New Canaan and the defendant presently resided in Fairfield. Until August 8, 1998, he, too, resided in the family home in New Canaan.
The plaintiff attended Trinity College in Ireland for three and a half years. The defendant graduated from Delphi University with a B. A. degree in psychology. Both have worked throughout their marriage, except for CT Page 6390 gaps when the plaintiff had the children and when the defendant was out of work for a few months between jobs. The plaintiff is presently unemployed. She worked until a year ago. She claims her health prevents her from working. She has held several jobs over the years. She has worked as a secretary in real estate offices, in the parties’ retail shops in Fairfield, Yonkers, New York, and New York City and for Connecticut Limousine. In her 2000 federal tax return she describes herself as an executive assistant and as an entrepreneur and, in an invoice to Robert C. Skelly, an employer in the year 2000, as engaged in Administrative Consulting (see plaintiff’s exhibits A, SS and defendant’s exhibit 19). The plaintiff and the defendant engaged in a business known as Women In Real Estate Development which they named WIRED.
During their marriage, the parties purchased a four family house in Groton, Connecticut, and a six family house in New Britain. (See Schedule C 1996 Income Tax Return, plaintiff’s exhibit A.) Both of these properties were sold prior to the commencement of this action in March 1998. The Groton property was sold in September 1997. The proceeds of sale were deposited in a joint account at Cornerstone Bank. The plaintiff had an account in her name alone d/b/a Women in Real Estate Development (WIRED) also at Cornerstone Bank. (Exhibits B and C.)
On October 5, 1997, the plaintiff withdrew $38,000 from the Cornerstone Bank joint account and $5,000 from the WIRED account. Plaintiff maintains she sent this money to her father in Ireland to pay him back the money that was owed to him and that he had loaned for the purchase of their New Canaan home and prior homes. The plaintiff has been unable to produce any evidence of these payments.
Subsequent to the commencement of this action and in violation of the automatic orders entered on commencement of the action, the plaintiff purchased properties in the year following and prior to judgment in June 1999 as follows: in Derby on April 24, 1998, for $26,125 and sold on July 28, 1998, for $43,500 (exhibit F); in Plainville from the State of Connecticut on October 6, 1998, for $25,000 conveyed to Delacourt Group, LLC on February 13, 2002 (exhibits H and W); in the Oakville section of Watertown on June 9, 1998, for $96,000 and subsequently conveyed to the Corcoran Group, LLC on February 12, 2001 (exhibits I and CC); and in the Wauregan section of Plainfield on August 20, 1998, and subsequently sold on February 28, 2002. The $9,000 withdrawn from Cornerstone Bank on October 15, 1997, was payable to the State of Connecticut. It may well have been the deposit on the Plainville property.
Subsequent to the judgment of dissolution, property was purchased in Milford by the Corcoran Group, LLC on March 17, 2000, and then conveyed CT Page 6391 to the plaintiff on March 22, 2000 and conveyed back to the Corcoran Group and subsequently sold on February 2, 2001. (Exhibits GG through KK.) Still owned by the Delacourt Group, LLC is the property in Plainville, and still owned by the Corcoran Group, LLC is the property in Watertown (referred to as the Oakville property). The defendant lays claim to the Watertown property (see defendant’s claim for relief number 2) and the Plainville property (see defendant’s claim for relief number 5).
It is the plaintiff’s position that all of these properties were bought, in effect, by her father, that her father is the owner of the Delacourt Group, LLC and Corcoran Group, LLC. Plaintiff maintains the rent from these properties belongs to her father and that the money to purchase these properties has been his. However, the record is replete with evidence to the contrary. In a complaint in her name and the Corcoran Group, LLC against John Malbray, et al, Superior Court, Judicial District of Waterbury, regarding the Watertown property, the following allegation is made in paragraph 1:
From June 9, 1998 to September 29, 1998, the Plaintiff, in her individual capacity, was the owner of a multifamily home situated in the Town of Watertown, County of Litchfield and State of Connecticut and known as 685 Main Street. From September 29, 1998 to the present time, said premises was owned by the Corcoran Group, LLC, of which Olwen Falkenstein is the sole member and is authorized to act.
(Exhibit MM.)
In a residential loan application in February 2000, the plaintiff stated that she owned the Oakville property described as a five family house and the Plainville property also described as a five family house, Oakville with a rental of $2,250 per month and Plainville with a rental of $650 per month. (Exhibit DD.)
In that same exhibit in the typed portion with a date of March 22, 2000, the plaintiff reports wages of $3600 per month. During this same period, she filed an affidavit with Judge Hiller which reported no wages. The net rental income there reported is $2715 for a total monthly income of $6315. The net monthly income for Oakville and Plainville (the properties still owned by the LLCs) is $1145. This figure has a vacancy factor applied.
The application is signed by the plaintiff with the statement that the information therein contained is true and correct and that any intentional misrepresentation may result in criminal penalties including CT Page 6392 fine or imprisonment or both. In the partnership return of The Corcoran Group, LLC for 1998, the plaintiff signs as “general partner or limited liability company member.” It is to be noted that Schedule B, number 6 of that return reports no foreign partners in the partnership. In the Articles of Organization of the Corcoran Group, LLC, the plaintiff signs as organizer and as a member. (Exhibit EE.)
During all of this period, the plaintiff has misrepresented her earnings. There have been times she reported no wages in her financial affidavits yet she was working on a part-time basis. She has concocted whatever story suited the situation. Another example is shown in defendant’s exhibit 18 in a letter dated February 29, 2000, to her income tax preparer wherein she states: “My ex-husband does not know that the apartment at 107 Hickory Drive is rented for $1100 per month. Therefore, his share is half of $1864 per month.”
A factor which the court must consider in making its decision in this case is the health of the parties. Prior to the commencement of this action in March 1998, defendant described the plaintiff as “strong as a bull dog.” He reports that she was never sick. The plaintiff describes her health now as “bad.” She states that she has a problem with her thyroid and that this has existed for six years. She is treating with a physician in Stamford who sees her every two months. She testified that she has diabetes which she has had for a year. She also has arthritis. Her doctor has prescribed Celebrex for her arthritis, Glycophage for her diabetes, and Synthroid for the thyroid. She also has iritis. This is checked by her doctor every six months. She testified that her health prevents her from working and that she cannot use the computer because she cannot work with her hands.
The plaintiff is active, is alert and quite capable of performing what she has done for the past six years — that is, buying and selling real estate.
The defendant is employed by Omega Engineering as product manager where he has worked for eighteen years and earns $67,000 gross per year. His financial affidavit shows a net of $935 per week. While he is perfectly able to perform his work, he, too, has physical problems. Probably because of the stress he has been under he has lost 45 lbs. His weight has gone from 190 lbs. to 145 lbs. He complains that he cannot sleep, cannot eat and has headaches every three or four days. He has high cholesterol and sees an endocrinologist and a general practitioner every six months.
The defendant describes the marriage as having broken down after the CT Page 6393 first two years, but it was his wish to keep the family together. He states the marriage was more of a companionship. He states that he never struck the plaintiff but that she hit him with a bicycle helmet on one occasion. He describes the plaintiff as cruel to the children, always critical and derisive to Emily. He describes the marriage as broken down completely five years before 1998 when this action was commenced.
The plaintiff’s father resides in Ireland, is 93 years of age, is a retired postman and army officer. His daughter, Margaret Cranley, has been appointed his conservator. (See exhibit LL.) Plaintiff and her sister are the only heirs.
The defendant seeks a refund of the alimony paid since November 2, 1998, to date totaling $35,812. He also seeks a refund of $532 per month paid for ten months totaling $5320 as his half of the mortgage insurance and taxes on the New Canaan property less the rent received on the separate apartment. These funds were paid pursuant to court order and during the period from 1999 to date.
The pendente lite alimony order was $163 per week. In the judgment in June 1999, the alimony order was for $125 per week. Thereafter, before the judgment was reopened, alimony was modified to $150 per week. The defendant has continued to pay this amount by way of wage garnishment. The defendant argues that when Judge Brennan granted the motion to reopen he ordered “all prior orders be vacated and the original judgment of June 11, 1999, be set aside.” The only notation appearing in the court file is the following: “Defendant’s Motion to Reopen the judgment is granted. Pendente Lite alimony order of $163.00 weekly, payable to the plaintiff as per 11/2/98 order of the court is reinstated as of this date.” As previously noted, this order was entered on August 27, 2001.
To grant the defendant’s request for refund of the alimony paid is tantamount to a retroactive modification of the pendente lite orders. Section 46b-86 (a) provides for retroactivity only to the date of service of the motion for modification. The court has no authority to grant any further modifications. See Sanchione v. Sanchione, 173 Conn. 397, 406
(1977).
The defendant also seeks recovery of the $5,320 paid by him toward the first and second mortgages, taxes and homeowner’s insurance expenses of the marital residence ordered at the time of the first judgment. On August 22, 2000, Judge Hiller suspended this order. When Judge Brennan reopened the judgment on August 27, 2001, the order entered by Judge Novack on June 11, 1999 with respect to the New Canaan real property was rendered null and void. The payment of the first and second mortgages, CT Page 6394 taxes and homeowner’s insurance were considered at the time of the parties’ agreement on pendente lite alimony and support. These expenses were plaintiff’s. The defendant’s sole obligation under the pendente lite orders was to pay alimony and support and it was the plaintiff’s obligation then to pay these expenses. The defendant is entitled to reimbursement for that sum paid by him.
Paragraphs 7 and 9 of the defendant’s claims for relief are denied. Paragraph 8 of the defendant’s claims for relief is granted. Paragraphs 2, 5, and 6 of defendant’s claims for relief are denied.
In view of the plaintiff’s deceit, it is difficult to make a just decision in this case. The court finds that the property in Watertown and in Plainville is equitably owned by the plaintiff. Section 46b-81 of the General Statutes provides that in addition to the factors of length of the marriage, cause for the dissolution, age, health and station of each of the parties, the court shall consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates. The defendant had no role in the acquisition, preservation or appreciation in the value of these properties. The court finds that it is more likely than not that the money for the purchase of the first three properties in 1998 came from the withdrawal from the Cornerstone Bank on October 15, 1997. One half of the $43,000 or $21,500 withdrawn on that date belonged to the defendant. The court in entering its orders shall take this into account.
The court finds as follows.
1. There is the requisite jurisdiction.
2. The allegations of the complaint have been proved and are true.
3. This court has previously entered its decree of dissolution of the parties’ marriage and found that the marriage had broken down irretrievably. This court finds that the plaintiff is more at fault in the breakdown of the marriage than is the defendant.
4. The plaintiff has deceived this court in many ways, only some of which have been enumerated herein. The plaintiff more likely than not is the beneficial owner of the properties now owned by The Corcoran Group, LLC and the Delacourt Group, LLC.
5. The plaintiff enjoys the rent received on the five family houses in Watertown and Plainville. The net rental income from these properties was reported in March 2000 to be $1145 per month. CT Page 6395
6. Each of the parties contributed to the acquisition, preservation and appreciation in value of their respective estates at least until October 1997. The court finds that it was some time around October 15, 1997 that plaintiff’s deception began. Prior to that time, the plaintiff contributed to the household for the length of the marriage to that time, that is, a period of twenty-seven years.
7. While the plaintiff’s financial affidavit shows the plaintiff as unemployed, she has worked through the years in various positions and is capable of returning to like work.
8. Each of the parties has incurred significant counsel fees. The plaintiff has incurred fees in the amount of $62,300. The defendant has incurred fees in the amount of $138,300, most of which were incurred by reason of the plaintiff’s failure to disclose assets, failure to truthfully report her wages and income and failure to follow the automatic orders pursuant to Section 25-5 of the Practice Book. The fees of both counsel are found to be fair and reasonable.
Having considered all the factors of § 46b-81 and § 46b-82 of the General Statutes, the court enters the following orders:
1. A decree of dissolution of the parties’ marriage was entered on June 11, 1999. The court, to the extent such an order is necessary, affirms that decree as to the dissolution of the parties’ marriage.
2. The defendant shall pay the plaintiff alimony in the amount of One Hundred Fifty ($150) Dollars per week until the earliest of the following to occur: the death of either of the parties or the remarriage of the plaintiff or eight (8) years from the date hereof. This order for alimony shall be nonmodifiable as to term. The order shall be by way of an immediate order for wage withholding.
3. The defendant shall pay to the plaintiff the sum of $1056 by way of alimony for the period August 27, 2001 to May 16, 2003.
4. The real property at 107 Hickory Drive, New Canaan, Connecticut, shall be placed upon the market for sale within thirty (30) days of this date at a sales price of not less than Seven Hundred Eighty-five Thousand ($785,000) Dollars. The sales price shall be reduced by 5% of the listing price every thirty (30) days. The sales price shall not, however, be reduced below $695,000 until further order of the court. From the gross proceeds of the sale, the following expenses shall be paid: CT Page 6396
a. balance of the first mortgage;
b. balance of the second mortgage; c. real estate commission;
d. conveyance taxes;
e. attorneys fees and other costs of closing.
The balance of the net proceeds shall be paid 50 percent to the plaintiff and 50 percent to the defendant. From the plaintiff’s proceeds the following shall be paid:
a. past due real estate taxes for 107 Hickory Drive, New Canaan, CT;
b. past due personal property taxes due the Town of New Canaan;
c. State of Connecticut Husky Insurance Plan costs; and,
d. reimbursement to Town of New Canaan for oil bills paid by the town.
5. The court shall retain jurisdiction over all issues of the sale of the home. The plaintiff shall have exclusive possession of this property until the date of sale. Between the date hereof and the date of sale of the property, the plaintiff shall pay all expenses including the monthly payments on the first and second mortgages, homeowner’s insurance, maintenance and yard expense. If there are liens upon the property, those liens shall be plaintiff’s responsibility.
6. The plaintiff shall pay to defendant the sum of $5,320 as reimbursement for the sums paid by him for the mortgages, insurance and taxes upon the real property in New Canaan, the same to be paid from her proceeds of sale of the New Canaan property.
7. The plaintiff shall pay the defendant the sum of $21,500 as his half of the money withdrawn from the Cornerstone Bank accounts on October 15, 1997, from her proceeds of sale of the New Canaan property.
8. Disposition of the contents of the marital residence shall be agreed upon between the parties. In the event that the parties cannot agree as to the disposition of any personal property, this matter shall be referred to Family Relations for mediation. Should mediation not be successful, they shall return to court for further orders. In the event of disagreement prior to the sale of the marital premises, such property upon which the parties cannot agree shall be placed in storage at the equal expense of each. CT Page 6397
9. Each party shall retain their respective motor vehicles as listed on their current respective financial affidavits filed with the court. Each party shall be solely responsible for the following with respect to her/his motor vehicle: all expenses of maintaining said vehicle including the car tax, insurance, registration and any transfer fees for the vehicle.
10. The parties shall each retain the remaining assets listed on his/her respective financial affidavits free and clear of any claim by the other.
11. The defendant shall retain his 401(k) with Omega Engineering, Inc., with an approximate value of Twenty-two Thousand ($22,000) Dollars.
12. Except as herein provided, each party shall be responsible for the liabilities listed on his/her respective financial affidavits and indemnify and hold harmless the other party.
13. From the proceeds of the sale of the New Canaan residence the plaintiff shall pay to the defendant the sum of Fifty Thousand ($50,000) Dollars as a contribution toward his counsel fees, the substantial portion of which was necessitated by the plaintiff’s deceit. This order is entered pursuant to the provisions of § 46b-62 of the General Statutes and having considered the factors of § 46b-81 and § 46b-82
of the General Statutes.
14. The defendant shall be responsible for the balance of his own counsel fees.
15. The plaintiff shall be responsible for her own counsel fees.
16. The plaintiff’s maiden name of Olwen Cullen shall be restored and she shall hereafter be known by that name.
Orders shall enter in accordance with the foregoing.
EDGAR W. BASSICK JUDGE TRIAL REFEREE
CT Page 6398