2010 Ct. Sup. 4043
No. FA08-4109828SConnecticut Superior Court Judicial District of New London at Norwich
February 1, 2010
Memorandum of Decision
SHLUGER, J.
The plaintiff who was a resident of Mystic, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on December 9, 2008. At the time, the defendant was a resident of Groton, Connecticut.
The court finds that it has jurisdiction and that all statutory stays have expired. A limited contested trial was held before the undersigned on January 26 and 29, 2010.
Both parties appeared at trial and the husband was represented by counsel. The wife had discharged her two previous counsel.
The court has fully considered the criteria of Connecticut General Statutes (hereinafter CGS) §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.
FACTUAL FINDINGS
The court finds that the following facts were proven by a preponderance of the evidence:
1. The plaintiff and the defendant whose maiden name was Lindstrom were married on Aug. 15, 1997 at Milton Keynes, UK.
2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.
3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.
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4. There have been four children born to the wife since the date of the marriage; namely, Finbar Foley born 8-04-98, Aston Foley born 10-26-99, Brooke Foley born 6-01-01, and Niall Foley born 7-15-04. No other children have been born to the wife since the date of the marriage.
5. Neither party has received assistance from any State or local agency.
6. The parties have been separated several times. They initiated a divorce before. The cause of the breakdown of the marriage is found to be mutual.
7. The husband is employed as a professor at the Coast Guard Academy and earns $114,000. The wife is a stay at home mother with primary parenting responsibilities for the four young children. She has not worked outside of the home since 2002. She has not earnestly sought employment outside of the home. Based on her limited American education and the costs of daycare, her present earning capacity is found to be no more than $200 per week.
8. Prior to the marriage, the husband owned a residence in England worth between $60,000 and $80,000. It was eventually sold in 2006 for approximately $272,000 which was used as a down payment for the marital home and to fund a Bank of America CD (hereafter CD). The remainder of the assets were accumulated during the course of the marriage except for the wife’s English pension which is premarital.
9. The parties stipulate that the court may retain continuing jurisdiction regarding post-majority educational support pursuant to CGS § 46(b)-56c.
10. The parties have been separated since 2008 with the husband vacating the marital residence. He presently pays combined alimony and child support of $896 and that order has caused him to deplete much of the CD. Both are fit parents and have entered into a parenting agreement, subject to some fine tuning.
11. There presently exists as marital assets the marital residence in Mystic, Connecticut found to be valued at $325,000 with a mortgage of approximately $245,000 and equity of $80,000, the husband’s Groton home, found to be worth $130,000 (purchase price) and a mortgage of $109,000 and an equity of $11,000, the Bank of America CD now valued at $20,000, the husband’s two small bank accounts valued at approximately $1,000, Ameritrade stock valued at $2,500, the husband’s two trucks valued at $1,000 each, the husband’s boats valued at $5,000, the husband’s Coast CT Page 4045 Guard pension, valued at $30,000, his annuity valued at $30,000, the wife’s diamond rings valued at $6,200, the wife’s minivan valued at $1,000, the IRS tax credit valued at $3,000, the trailer valued at $3,000, a motorcycle valued at $2500 and the wife’s English pension.
At the time of the filing, the CD was worth approximately $103,000 and now has a value of approximately $20,000. The court finds that this asset was spent on joint marital expenses, contrary to the wife’s claim that it was dissipated by the husband for his own purposes.
12. The parties’ debt includes the husband’s possible auto repair bills and the wife’s attorney fees, the son’s school tuition bill of $780 and the wife’s bank debt of $2,416.
13. The husband has summers off from his employment but has, in the past and could in the future, earn additional money.
14. The parties stipulated and agreed that there shall be joint legal custody with primary residence with the wife. The wife’s parenting plan is found to be in the children’s best interest but that she not have final authority and that all children attend public school effective fall 2010.
15. The court finds that this protracted litigation was primarily the fault of the wife, whose claims of hidden assets, extramarital affairs and earnings in excess of the husband’s W-2 wage statement were unfounded.
16. The wife is 42 years old and the husband is 42 years old and both are in good health.
17. The court finds that if this were an intact family, it is likely that the parents would have provided post-majority educational support to the children so the court will retain continuing jurisdiction regarding post-majority educational support pursuant to CGS § 46(b)-56c.
LEGAL DISCUSSION
“The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” Gervais v. Gervais, 91 Conn.App. 840, 841, cert. denied 276 Conn. 919 (2005).
Regarding the distribution of property, CGS § 46b-81 states:
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In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.
The court in Krafick v. Krafick, 234 Conn. 783 (1995) held that the purpose of § 46b-81 was “to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute — directly and indirectly, financially and non-financially — the fruits of which are distributable at divorce.” Id., 797-98. Ranfone v. Ranfone, 103 Conn.App. 243, 250-51
(2007).
The court in Picton v. Picton, 111 Conn.App. 143 (2008), held that “an equitable distribution of property should take into consideration [each spouse’s] contributions to the marriage, including homemaking activities and primary caretaking responsibilities;” id., 311; and that “a determination of each spouse’s contribution within the meaning of . . . § 46b-81 includes nonmonetary as well as monetary contributions.” Id., 153.
“A court may accept or reject such evaluations in whole or in part and ascribe its own valuations to real estate . . . The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder. Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 430-31 (1987).”Martin v. Martin, 90 Conn.App. 145, 150 (2007).
“Trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings . . . The trial court is granted the authority, pursuant to section 46b-81, to order the sale of the marital home without any act by either the husband or the wife, when in the judgment of the court is the proper mode to carry the decree into effect.” Martin v. Martin, 99 Conn.App. 145, 154 (2007).
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Regarding the awarding of alimony, CGS § 46b-82 states:
At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefore on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.
ORDERS
The court orders the following:
1. Dissolution may enter.
2. The parties shall enjoy joint custody of the minor children pursuant to the wife’s parenting plan (attached) but that neither shall have final decision-making authority. Neither party shall injure the children’s opinion of the other parent by their words or their actions. Neither parent shall permit any third party to injure the children’s opinion of the other parent by their words or their actions. Neither party shall discuss any adult matters with the children, including but not limited to this trial, or any other court-related matter. The children shall be CT Page 4048 enrolled in public school effective the fall, 2010. The court finds that the parties are not able to afford private school, that the commute to private school is long and that no need has been demonstrated. Each parent shall keep the other apprised of all curricular and extracurricular activities including but not limited to teacher conferences, athletic practices and games, concerts, medical appointments and report cards.
3. The husband shall pay child support to the wife in the amount of $400 per week and the parties shall divide any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or work-related day care costs, 69% payable by the husband and 31% payable by the wife. The presumptive child support would have been $461 per week but the court finds that the husband has extraordinary visitation expenses.
4. The husband shall pay alimony to the wife in the amount of $300 per week for six years. Said alimony will terminate upon the earlier of six years, the death of either, or the wife’s co-habitation, remarriage or civil union. It is modifiable as to amount only. The wife may earn up to $15,000 a year as a “safe harbor” before such earnings shall be considered for purposes of a modification.
5. The court will retain continuing jurisdiction regarding post-majority educational support of the minor children pursuant to CGS § 46(b)-56c.
6. The husband shall maintain medical and dental coverage for the minor children as available through his employment at a reasonable expense.
7. The husband shall quitclaim to the wife all of his interest in the marital residence. The husband shall retain his Groton home. As of February 1, 2010, each shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the other harmless and indemnify the other for any such expenses.
8. The husband shall retain his two trucks. The wife shall retain her Windstar vehicle.
9. The husband shall transfer to the wife 50% of all of his retirement accounts and pension, valued as of the date of dissolution and adjusted for any gains or losses, including dividends payable to the date the benefit is segregated for the wife. The death of either the husband or the wife prior to receipt of his or her benefit shall have no effect on the benefit of the other. The division of the benefit shall be done by CT Page 4049 way of a qualified domestic relations order (QDRO) and the cost of the QDRO shall be shared equally by both parties.
10. Each party shall pay the debts on their respective financial affidavits except that the husband shall pay the child’s private school tuition currently due and the balance of the January mortgage payment, after Attorney Gould has forwarded the balance of the Foley funds in his client’s funds account to the mortgage bank. Thereafter, the parties shall share equally the balance of the CD. Each shall retain their other respective bank accounts except that the Ameritrade stock account shall be shared equally.
11. The husband may take all four dependency exemptions each year unless the wife earns $15,000 at which time she shall be entitled to claim one exemption in each such year.
12. The wife shall keep her English pension, her diamond jewelry, wood flooring, motorcycle and trailer. The husband may keep all boats and boating equipment.
13. Each shall pay their own counsel fees.
14. By stipulation, the wife will defer to the English courts regarding the Cherry Willingham property and she makes no claim to said property in this case.
15. The parties agree to file a joint 2009 tax return, share any expense associated with the preparation and share equally any tax refund or deficiency.
16. Each party shall maintain their current life insurance for the benefit of the children so long as a child support obligation exists.
17. The payments and obligations referenced in these orders are intended to be family support/maintenance payments within the meaning of sections 523(a)(5) and 523(a)(15) the United States Bankruptcy Code and not dischargeable in bankruptcy. Each party shall be solely responsible for all debts they have been ordered to pay and they shall hold harmless and indemnify the other thereon.
ATTACHMENT PARENTING PLAN
The Plaintiff in the above referenced matter hereby respectfully CT Page 4050 proposes that the court consider the following parenting plan order.
1) Custody: The parties shall share joint legal custody of the four minor children. Primary physical custody and primary residence shall be with the Plaintiff Mother.
2) The Defendant Father’s access schedule shall be as follows:
Alternating weekends from Friday 5.30 p.m. until Sunday 6 p.m., along with every Tuesday and Thursday for dinner from 5.30 p.m. until 8.15 p.m.
The mother shall drop off the children at the beginning of each visit to the father’s home and the father shall return the children to the mother home at the end of each visit.
In the event that a Monday holiday shall fall on the Father’s weekend, Father shall keep the children until Monday at 6 p.m.
In the event that the Defendant does not take the children during his designated visitation time, he shall pay 100% of all child care costs associated with such failure to take the children.
Each parent shall take the children to their scheduled sports, parties and events that fall on each parties’ allotted visitation schedule.
3) Major holidays shall alternate each year:
On odd years mother shall have every Christmas Eve from 5 p.m. until Christmas Day at 3 p.m. and the father every Christmas Day from 3 p.m. until 5 p.m. December 26th. In all even years, the schedule will reverse.
On odd years father shall have children for Thanksgiving Day. In even years the mother shall have the children for Thanksgiving Day.
4) Each parent shall have two weeks vacation with the children each summer with notice to the other party as to the weeks they have selected no later than June 1, of each year. In the event both parties want the same weeks mother shall have first choice for all even years and father for all odd years.
In the event the father does not take the children for two summer vacation weeks, he shall sign them up for two weeks of camp at a place of CT Page 4051 their choice and shall pay 100% of the cost associated therewith.
Father can have 2 further weeks of vacation time in the children’s school vacation weeks choosing between spring, Easter, summer or Christmas on his year scheduled to have the children Christmas morning. Notice of which weeks chosen to be given to the Defendant mother by January 30th of each year for vacation time that same year.
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