2008 Ct. Sup. 1956
No. FST FA-06-4010255 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
January 31, 2008
MEMORANDUM OF DECISION
LYNDA B. MUNRO, JUDGE.
This dissolution of marriage action came before the court by writ summons and complaint with a return date of October 24, 2006. The plaintiff, Dianne Fogel, whose birth name is Dianne DeBiasi married the defendant Thomas Fogel on September 5, 1998 in New Jersey. The plaintiff has lived continuously in the State of Connecticut for more than 12 months before the filing of this complaint. There have been two minor children born to the wife since the date of the marriage: Cora Fogel born January 1, 2001 and Luke Fogel June 30, 2003. No other minor children have been born to the wife since the date of the marriage and there are no other minor children issue of the marriage. The wife is not currently pregnant. The parties have not been recipients of public assistance.
This case was tried over non-consecutive dates spanning from September 8, 2007 through and including January 10, 2008. At the inception of the trial, the plaintiff filed claims for relief that included a claim for joint legal custody of the two children and a parenting plan that contemplated her moving to New Jersey to be in close proximity to the defendant. The defendant resides in New Jersey, having moved there after the parties separated. In November, an incident occurred when the parties were exchanging the children. As a result of that incident the plaintiff sought ex parte restraining orders in New Jersey and Connecticut. While she received ex parte relief, the restraining orders were terminated on the hearing date.
In December 2007, this claim for relief was amended to request a police department as the pick-up and drop-off location and to reflect her intention that her residence in New Jersey be a reasonable distance from the defendant. Not until the last day of trial in January 2008 did the plaintiff, by way of amended claims for relief, notify the defendant, and the court, that she no longer contemplated moving to New Jersey. At that time, plaintiff through counsel and her claims for relief, stated the plaintiff had decided she no longer wanted to move CT Page 1957 from the marital home in Stamford, Connecticut and instead wanted a parenting plan that contemplated her living in Connecticut and the defendant living at his present residence in New Jersey, which is approximately 2 hours away.
The rest of the plaintiff’s claims are for financial relief: they include claims for child-support, alimony, health insurance, life insurance and associated matters, a specified division of the marital estate, and attorney fees.
The defendant filed claims for relief seeking joint legal custody, primary residence of the children with the plaintiff, and a schedule of parenting time in hand, which contemplated his close proximity to the children. He also filed financial claims for relief regarding property settlement, child support, alimony and attendant matters.
The court has carefully considered the statutory criteria and case law regarding the dissolution of marriage, child support, alimony, health insurance for the children and his spouse, property settlement, and attorneys fees. The court has also carefully considered the law in regard to the custodial and parenting issues presented to the court. After listening to all of the testimonial evidence and reviewing all of the exhibits, the court finds the following facts based upon the credible evidence.
The plaintiff is 33 years of age; she is in good health. She has a bachelor’s degree with a major in psychology. Prior to the birth of the parties’ children, she worked at General Electric and her top income was approximately $45,000 per year with benefits. She has not worked since the birth of Luke in 2003. Therefore, she has been out of the workplace for approximately 4 1/2 years. She has been the primary caretaker for the minor children and a homemaker for the family until the parties separated in April 2007.
The defendant is 41 years of age. He has a B.Sc. degree from Rensselaer Polytechnic Institute in management and marketing and an MBA from American University. While he had other employers prior to the marriage, during this marriage he was employed primarily by Pitney Bowes.
At the end of 2006, he received a severance package from Pitney Bowes which was one year’s pay. It ended on December 31, 2006. He found employment with the BT Radianz and commenced that employment on May 7, 2007. His salary is $160,000 per year. He may be awarded a discretionary bonus to a maximum of 20% of his annualized salary, solely in the CT Page 1958 discretion of the employer, and only if he and the corporation reach targeted goals. The employer has a qualified 401K plan, and a standard package of health and other insurance benefits. He is in good health. He is also a qualified EMT, and until his move to New Jersey was a volunteer firefighter in Stamford, Connecticut. His current work hours outside of the home are a traditional work schedule of approximately eight a.m. to five p.m.; he works in New York City. He also may work from home on Fridays.
Plaintiff claims that the dissolution of marriage was caused by the defendant’s behavior, which she described as controlling and abusive. The court does not find her claims of physical abuse credible. The defendant claims that the cause of the breakdown of the marriage was arguing between the parties and an affair that the plaintiff was having, which he did not discover until after the parties separated. The only evidence before the court regarding the affair is that it was occurring from September 2006 forward to the present day. This is coincident with the commencement of this dissolution of marriage action. The defendant has failed to prove that the affair predated the filing of the dissolution of marriage action. The affair is not found to be a cause of the breakdown of marriage, though it has undoubtedly contributed to plaintiff’s determination to find her separate life from the defendant. After considering all the credible evidence, the court does not find either party is materially at fault for the breakdown of marriage.
The plaintiff brought virtually no assets to the marriage. The defendant came to the marriage with several retirement accounts and cash savings. He has retained his retirement assets that he earned prior to the marriage: his Nissan 401(k), his Microwarehouse 401(k), and his Nissan pension cash-out. The current marital home was purchased with premarital funds contributed by him in the amount of $35,000.
During the pendency of the action, pursuant to an agreement between the parties, orders were entered on August 13, 2007. At that time parties agreed and the defendant was ordered to pay $2,600 per month child support and $2,900 per month alimony. He was permitted to deduct household expenses that he paid, so long as he documented them. The plaintiff was responsible for the timely payment of the mortgage, home equity loan, and household bills. Finally, as part of the court order, on August 13, 2007, the parties agreed in the court order that the plaintiff’s attorney would receive $10,000 from the closing of the sale of the marital home.
The marital home has been on the market for sale during the entire pendency of this action. On the final date of trial, the plaintiff CT Page 1959 expressed the desire to keep the home by refinancing the existing 15-year mortgage and home equity loan, with the help of her parents as co-signers. During the pendency of this action, the defendant was able to pay the court-ordered sum spent of $5,500 per month for alimony and child support because he was receiving his current paycheck and his Pitney Bowes severance. Essentially he was receiving two pay checks. The Pitney Bowes severance pay terminated on December 31, 2007.
As a result of the severance pay, the defendant filed a motion to modify his pendente lite obligations. That motion was heard as part of this trial. The plaintiff also filed a motion for contempt claiming that the defendant improperly deducted the COBRA payments for the plaintiff’s health insurance from the monthly support order, and the AT T bill for December 2007. This motion for contempt was heard as a part of the trial and is ruled on here as well.
As a central part of the defendant’s claims for relief, he seeks the enforcement of the oral agreement between himself and the plaintiff which was reached in April 2007 during the pendency of this action. The plaintiff rejects that and claims that that agreement was unfair to her; and that she did not realize it until performing discovery in exercising her own independent judgment. Having reviewed the plaintiff’s counsel’s bills, it is clear that she had the full advice of counsel when she entered into that oral agreement, which was never memorialized in writing. Therefore, while the court declines to enforce that agreement without regard to the statutory factors in regard to the elements of the case, it specifically does not find that the defendant controlled or otherwise manipulated the plaintiff to come to the oral agreement that she later repudiated.
As a result of the initial oral agreement, certain actions were taken by the parties. First, defendant moved out of the home and moved to New Jersey. Second, the plaintiff was given approximately $26,000 from the Wells Fargo Money Market account by way of preliminary division of assets. Finally the house was put on the market for sale in contemplation of the relocation of the entire family to two households in New Jersey. Therefore, the asset structure of the parties and the expenses incurred by the defendant and his relocation were all part performance of an agreement. As the court considers what is an appropriate mosaic for the equitable distribution of the marital estate, the changes made in contemplation of the agreement that was repudiated must be considered.
Each party had access to funds as part of the anticipated agreement between them which was repudiated. The defendant took the $53,000 which CT Page 1960 he asserts represented his share of certain funds and had a bank check made out after the deal went bad. It was not shown on his financial affidavit. At the beginning of the trial, he testified he has spent it all on a variety of items. Later in the trial he acknowledged he actually still had the money. This inconsistent testimony cannot simply be explained away as a mistake. The failure to disclose the continued existence of the $53,000 as an asset was not mere inadvertence.
The parties spent a tax refund and a bonus received pendente lite. The home equity loan was largely used to pay legal fees for both parties. The court notes that many assets were liquidated during the pendency of this action, some by the parties with each others’ knowledge, some without notice. These include defendant’s stock options of about $35,000, the plaintiff’s Oppenheimer 401K of about $52,000, gross and mutual funds. In each instance it was asserted that the funds were necessary for living expenses or attorneys fees. Throughout the action, the defendant has been the sole support of this family.
Of the assets that were owned pre-maritally by the defendant, the following values can be determined. The defendant’s Nissan Pension cash out was $7,952.07 on June 26, 2003. Therefore, since that date it has accrued about $4,400 in value.
The parenting orders entered below are provided for in the alternative. If the parties continue to live a substantial drive apart, the orders reflect the same. If the plaintiff moves closer to the defendant or the defendant moves closer to the plaintiff, as provided for below the orders reflect that change.
The court finds the following values of assets:
1. Nissan 401K $73,667 in the husband’s name;
2. Microwarehouse 401K $21,798 in the husband’s name;
3. Nissan Pension Cash Out Account $11,551 in the husband’s name;
4. Pitney Bowes 401K $180,000 in the husband’s name;
5. T Rowe Price IRA $4,244 in the wife’s name;
6. GE Pension $11,800 in the wife’s name;
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7. Cora’s 529F fund $43,517 with father as custodian;
8. Luke’s 529F fund $35,243 with father as custodian;
9. Cora’s `Wedding fund’ $28,015 with father as custodian;
10. Luke’s `Wedding fund’ $21,883 with father as custodian;
11. Husband’s Pitney Bowes pension interest has a lump sum payout of not less than $34,106.09 when he is 55 years of age; currently it has a benefit estimate ranging from $537.04 for a life income only to $455.41 for joint survivor annuitant; benefits are to commence on June 1, 2031.
12. Real Estate at 77 Dartley Street, Stamford, CT, fair market value $549,000, with a net equity of approximately $245,000;
13. Bank of America cashiered funds $53,000 in the husband’s name;
14. The parties have three motor vehicles as shown on their respective financial affidavits. Only the Acura, driven by the husband has a loan on it, in the amount of $17,000.
15. The defendant has a modest sum of about $7,500 accruing in his current employer’s 401K.
16. The Wells Fargo Money Market Fund balance of $900.
The parties have each asserted certain debt as shown on their respective financial affidavits. The court has no reason to challenge the balances stated thereon; therefore they are accepted as the values.
Pendente Lite Motions Heard at Trial
The plaintiff seeks a court order finding the defendant in contempt of CT Page 1962 court for (1) deducting the COBRA payment from her monthly alimony stipend. He has the right to deduct household bills. He claims he properly deducted the COBRA payment as a bill of the household. The plaintiff says it is not a bill to run the household, and it is a bill only incurred because the defendant failed to carry her over to his new health insurance, instead leaving her on the Pitney Bowes COBRA, which will run out earlier than her COBRA would have from his current plan. While that may be so and is a factor for the court in the dissolution of marriage financial orders, it is not relevant to this motion for contempt. The court finds that the order is ambiguous and the defendant’s conduct was not contemptuous. A reasonable person might construe the COBRA bill as a household bill. The plaintiff further seeks a finding of contempt for the defendant’s deduction of the December AT T bill. However, no contempt finding lies for the bill’s monthly charge is paid prospectively, so he was paying a current obligation notwithstanding her claim to the contrary. The pendente lite motion for contempt is denied.
The defendant has also filed a pendente lite motion to modify his alimony and child support obligations as a result of the loss of his Pitney Bowes severance pay. The court finds that this factual circumstance constitutes a substantial change of circumstance. As a result thereof, retroactive to January 1, 2008, the court orders the defendant to pay to the plaintiff child support in the amount of $416 per week and alimony in the amount of $3,600 per month for the month of January 2008. Therefore, the plaintiff is ordered to pay all of the household bills with the exception of the home equity loan which the defendant shall pay.
The court issues the following orders:
1. Dissolution of the marriage.
2. The parties shall have joint legal custody of the minor children with the following schedule of parenting, so long as they reside more than 40 road miles away from each other: the children shall reside primarily with their mother and the father shall have parenting time every other weekend, from Friday to Sunday with the exchange at the Palisades Mall, and, on all occasions when he can be present to see them in Connecticut, with 24 hours notice. If the parties reside less than 40 road miles away from each other the following is ordered: the children shall reside CT Page 1963 primarily with their mother. The father shall have parenting time every other weekend from Thursday after school to Sunday at 5 p.m.; every week, the children shall be parented by their father every Tuesday from 5:30 p.m. to 7 p.m., and Thursday overnight to Friday at school on weeks that he will not be parenting the following weekend.
3. As to Holidays, vacations and general parenting matters, the following is ordered regardless of the parties’ proximity of residence: the mother shall have Mother’s Day and the father shall have Father’s Day; the parties will alternate New Year’s Day, Martin Luther King, Jr. Day, Good Friday, Easter, Fourth of July, Columbus Day, Thanksgiving Day, and Christmas Eve to noon Christmas Day. The schedule shall be set up so the holidays are alternated and the years are alternated even and odd. The parties shall alternate school vacations and the parties shall each be entitled to three weeks vacation in the summer, which shall be nonconsecutive. The defendant shall give the plaintiff notice of his three week selection by February 1 of each year and the plaintiff shall notify the defendant of her selection by March 1 of each year. These orders take priority over the normal calendar year schedule.
4. The parties may alter their parenting schedule if they both agree in writing. If they cannot find a convenient way to accomplish this, the court recommends use of the Our Family Wizard website.
5. The plaintiff shall provide the defendant 60 days notice in writing if she intends to relocate the children’s residence with her.
6. The defendant shall pay to the plaintiff child support in compliance with the presumptive child support under the Guidelines in the amount of $416.00 per week by income withholding. They shall be responsible for health expenditures of CT Page 1964 the children and qualifying day care under the Guidelines 70% by the husband and 30% by the wife.
7. The plaintiff shall pay her own health insurance COBRA premiums. As additional alimony when the plaintiff’s COBRA coverage wears out, the defendant shall pay the plaintiff an additional $500 per month for a period of one year, unless his alimony obligation has sooner terminated by reason of the plaintiff’s remarriage, civil union, or cohabitation as provided for by statute, or February 1, 2017. Said alimony is not modifiable as to term.
8. For the tax year 2007, the defendant shall pay all taxes on his income, exercise of stock options, bonuses and severance payouts. Each party is to pay the taxes on interest, dividends, and capital gains as the case may be on those assets awarded to them by these orders, or liquidated by them, respectively, during the tax year 2007.
9. Until the marital home is sold, the defendant shall pay to the plaintiff alimony in the amount of $3,600 per month, which shall be paid until the home is sold and then the defendant shall pay to the plaintiff alimony in the amount of $2,500 per month until earlier of the following events: the death of either party, the plaintiff’s remarriage, civil union, or cohabitation as provided for by statute, or February 1, 2017. Said alimony is not modifiable as to term. The alimony shall be paid by income withholding. The plaintiff is entitled to a safe harbor of $17,500 per year; that is, her earning up to that sum shall not be considered a substantial change of circumstances.
10. As additional unallocated alimony and support, to be fully deductible by the defendant and includable in income by the plaintiff, the defendant shall, commencing in the calendar year after the sale of the marital home (for example CT Page 1965 if the home sells in 2008, then commencing for bonuses received in 2009) pay the plaintiff 30% of the gross of said bonus out of the net received by him. When the defendant no longer has an alimony obligation under these orders the payment of additional child support out of a bonus shall be 20% of the gross of said bonus, to be paid out of the net received by him, unless the court modifies this order. As to the alimony portion of this order it is tied to the term of the order at paragraph 9 and is not modifiable as to term.
11. The defendant shall maintain life insurance in the amount of $250,000 so long as he has an alimony and child support obligation, half for the benefit of the plaintiff and half for the children; when he no longer has an alimony obligation, the children shall remain the beneficiaries solely as long as he has a child support obligation. The plaintiff shall within 6 months procure life insurance for the benefit of the minor children to reflect her duty of support of them as well and maintain it for their benefit with a minimum principal pay out of $100,000.
12. The marital home at 77 Dartley Street, Stamford, CT is ordered sold immediately. The property is to be listed for sale at the listing price of $549,000 and the parties shall accept any offer within 5% of the listing price that does not require them to hold a mortgage or tie up the property for a Hubbard clause for in excess of 30 days. If the property does not have a contract within 30 days then the listing price shall reduce 5%. This process shall continue until the property sells. The parties are free to vary these provisions so long as they agree to do so in a writing signed by both of them. At the closing of the property, customary closing costs, the mortgage and home equity loan are to be paid. The parties shall each receive 50% of the balance. If the mortgage or home equity loan is not current and delinquency interest and fees are paid at the closing, those sums shall be CT Page 1966 attributable to the party who is responsible for the same as follows: the home equity loan the husband; the mortgage and taxes the wife so long as the husband is current in his child support and alimony at the time of the closing. The court will retain jurisdiction over this provision to effectuate it in accordance with the intent of these orders.
13. The court orders the following properties are owned by the defendant free and clear of any claim of the plaintiff: his 401K from his current employer, the Nissan 401K, the Microwarehouse 401K, his Nissan Pension Cash Out Account $11,551, 50% of his Pitney Bowes 401K account, the remaining balance of the Wells Fargo Money Market account and half of the Bank of America cashiered funds of $53,000. The other $26,500 shall be placed in an escrow account (with the parties’ attorneys) for the following purpose:
a. if the plaintiff moves to within 40 road miles of the defendant’s residence within 30 days of the sale of the marital home, the sum shall be paid to her for anticipated costs of the move and re-establishing herself and the children in New Jersey;
b. if she does not do so and the defendant moves within 40 road miles of the plaintiff’s new residence (after the marital home is sold) on or before February 1, 2009, then the sum shall be paid over to the defendant for those anticipated costs of moving;
c. if neither party satisfies those terms, then the funds shall be kept in escrow with both of the parties as joint custodians for the benefit of each of their children in equal shares for purposes of securing their respective obligations under an educational support order;
d. if no such order enters by time the youngest child is 23 then the parties may share CT Page 1967 those proceeds equally.
14. The defendant shall convey to the plaintiff 50% of his Pitney Bowes 401K account, if necessary by QDRO, as valued on the date of these orders. The court orders the following properties are owned by the plaintiff free and clear of any claim of the defendant: her T Rowe Price IRA and the GE Pension $11,800 in her name;
15. The children’s 529F funds and their wedding funds shall be maintained by the parties as joint custodians. The court retains jurisdiction over the issue of educational support orders; however, it is found that if the parties had remained an intact family, they would have provided for the post-majority educational support of their children.
16. The wife is alternate payee, as owner of 50% of the husband’s Pitney Bowes pension which shall be affected by a Qualified Domestic Relations Order (QDRO). The court retains jurisdiction over the QDRO for its effectuation in accordance with these orders. The QDRO shall be prepared at the plaintiff’s expense.
17. The parties shall, pursuant to the pendente lite order, pay $20,000 of the plaintiff’s attorney fees, which shall be paid from the proceeds of the sale of the home. Thereafter, each party shall pay their own attorney fees. The court finds that to order any other payment of attorney fees by one party on behalf of the other will frustrate the intent of these financial orders.
18. The defendant shall claim both of the children as dependency exemptions for tax purposes. When the wife works outside the home earning in excess of $17,500 a year, then, the parties shall each have one dependency exemption. At such time as there is only one available, then the parties shall alternate with the defendant taking it first. The parties shall file their CT Page 1968 2007 state and federal tax returns, married filing separately.
19. The defendant shall maintain health insurance for the benefits of the minor children and the parties shall each pay one-half of their health expenditures not paid by insurance and qualifying day care expenses as defined under the Guidelines, in the event the plaintiff is employed outside of the marital home.
20. The plaintiff shall have her birth name of Dianne DeBiasi restored to her.
21. Each party shall pay their own debt.
22. Each party shall retain their own checking accounts.
23. The personalty in the marital home shall be the property of the plaintiff. The defendant shall be entitled to his personal effects and his tools. The parties shall split the family pictures, or, in the alternative the plaintiff may elect to make copies of all the pictures and the parties shall split that cost equally.
24. The plaintiff shall retain the Dodge Durango and the defendant shall retain the Infiniti and Acura. Each shall indemnify and hold the other harmless on the same.
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