2008 Ct. Sup. 12172
No. TTD FA 07 4006851 SConnecticut Superior Court Judicial District of Tolland at Rockville
July 24, 2008
MEMORANDUM OF DECISION
KLACZAK, J.T.R.
The plaintiff initiated this action for dissolution of marriage by complaint dated March 13, 2007. Both parties are represented by counsel.
Jurisdictional Findings
The plaintiff (wife), whose birth name was Jeanne Lapierre, and the defendant (husband) intermarried on August 3, 1963 in Southbridge, Massachusetts.
They have resided continuously in Connecticut for longer than twelve months next preceding the date of the complaint. There are no minor children issue of the marriage. (Two daughters were born to the parties and both are now adults.) Neither party has been a recipient of state and or other public assistance.
Discussion
The parties to this forty-five-year marriage do not agree on issues of property distribution, and the length of time for a portion of the alimony payments. The wife also seeks a finding of contempt for a claimed violation of the automatic orders whereby the husband utilized certain marital assets for his own purposes.
In reaching its decision in this case, the Court is fully aware of, and has considered, the criteria of § 46b-81, 46b-82. While the Court is obligated to take all of the criteria set forth in these statutes, it is not required to make express findings on each one, nor is it required to give equal weight to each one. The Court has wide latitude in applying the statutory criteria to the individual circumstances of each case Weiman v. Weiman, 188 Conn. 232, 234 (1982); Carpenter v. Carpenter, 188 Conn. 736, 740-41 (1982); Collucci v. Collucci, 33 Conn.App. 536, 539 (1994). The Court’s charge is to distribute, as equitably as possible, the marital assets of the parties. Rubin v. Rubin, CT Page 12173 204 Conn. 224, 228 (1987).
It is difficult to ascribe the breakdown of this long-term marriage to either party. The wife, now sixty-five years of age, claims the husband has been demanding and has grown distant. Also, while he has always been a good wage earner (well over $100,000 annually) his spending and casino gambling has been diminishing their savings especially in more recent years and she attributes that as the primary cause of the breakdown. The husband denies excessive gambling claiming a few trips a year to a casino. He claims they have been simply growing apart and it appears he has never been particularly frugal. He recently purchased a new 40′ motor home, (as an example of his spending) and the wife has been concerned that they were dipping into their investments for at least the past several years. Although his behavior does not seem to have changed dramatically in recent years, their relationship has become antagonistic and leads to a finding that the marriage has irretrievably broken down. It is ordered, accordingly that a judgment of dissolution shall enter on the grounds of irretrievable breakdown.
A. Was the husband in contempt for withdrawing $108,774 from his retirement funds after receiving the automatic orders on March 13, 2007?
The automatic orders provide that marital assets must remain intact unless the other party consents in writing otherwise, or the Court orders otherwise, except for . . . customary and usual household expenses or reasonable attorneys fees. The husband argues that both he and his wife had been withdrawing funds from their retirement accounts, citing that in 2005, he withdrew $32,000, and a similar amount in 2006. In 2006, his wife also withdrew some money from her accounts.
He argues that since they separated he still needs approximately $20,000 per year over his income to pay his obligations and expenses. Although the husband enjoys a good income, he (and his wife before they separated) did not live frugally. For instance, in 2007 he traded in a motor home on a new more expensive 40′ model. This was, however, done with his wife’s knowledge and at least tacit consent since she accompanied him in shopping around. It is also significant that he spent over $30,000 between March 13, 2007 and November 14, 2007 (when an alimony pendente order was entered) on household expenses, mortgage, taxes, insurance, on the marital home where his wife resided as well as medical bills for his wife.
In a contempt matter, the burden is on the movant to prove by clear and convincing evidence, a wilful violation of a Court Order. Where an CT CT Page 12174 Page 12180 alleged factual basis exists to explain the failure to follow orders, the Court has discretion to weigh that explanation. It is worthy of comment that the motion for contempt was filed on February 7, 2008 even though the wife was aware that the accounts were being diminished for several years previously.
The Court is not prepared to find a wilful contempt under these facts and denies the motion for contempt.
B. Alimony (by stipulation)
The defendant shall pay the wife the sum of $470 per week alimony based on his pension income, imputed social security and her social security. In addition he shall pay 20% of any gross income he receives including but not limited to earned income or unemployment compensation. He will provide copies of his paystub and unemployment to his wife to show how he calculated the percentage of his earnings paid to her. Alimony shall be modifiable as to term and amount except under no circumstances shall it be less than $314 per week and will not decrease below that amount even if the wife remarries or cohabitates as set out under the statute. In the event due to wife’s remarriage the $314 a week becomes non-deductible by the husband as alimony, the amount owed to the wife shall be adjusted to reflect 50% of the net pension received by the husband, which payment would then be non-taxable to the wife and non-deductible to the husband. The intent of this is to allow the wife to collect her share of the husband’s pension in pay status which is calculated to be $314 per week. By February 15th of each year defendant shall provide plaintiff with copies of his W-2s and 1099s and by April 15th of each year husband will provide wife with a copy of the first page of his federal tax return for the previous year so that she can verify that she has received the correct amount of alimony.
That portion of the alimony which is comprised of 20% of his earned income shall continue as long as there is an alimony obligation. The Court sees no persuasive reason to limit the length of time for that portion of the alimony as requested by the husband. There is a significant disparity between the wife’s ability to earn future income (nearly nil) and the husband’s, who has an earning ability in the neighborhood of $150,000 per year.
C. Marital Home
The wife shall have sole ownership of the marital home at 17 Torry Road, Tolland, Connecticut. By stipulation the fair market value of this property is $235,000 and the mortgage balance is $38,896. The wife CT Page 12175 claims that since the appraisal was done she found that $10,000 is needed to remediate a radon problem, install a water pump, driveway and deck repairs and seeks an adjustment for those repairs.
The husband’s request for the right of first refusal in the event the wife should sell the marital home is denied, as an unwarranted intrusion into the wife’s future business decisions.
D. Pension
By stipulation, the designation of the wife as 100% contingent annuitant on the husband’s pension through UTC is irrevocable and she shall remain the sole 100% beneficiary of said pension.
E. Property Distribution
The husband shall retain the 2001 Lincoln and the 2006 Chevrolet. He shall also have the 2007 Diplomat Motor Home and shall be responsible for all costs associated therewith.
The wife shall retain her 2004 Chevrolet and shall be responsible for all costs associated therewith.
F. Time Share, Mashpee, Massachusetts
The husband would take ownership provided no value is ascribed to it. The wife believes it has a value of $5,000 to $6,000. Since neither party has much interest in retaining this asset, it shall be listed for sale and net proceeds split fifty-fifty.
F. Other Asset Distribution Orders
The wife shall retain, free of any claim of the husband the following assets:
The husband shall retain free from any claims of the wife the following assets:
There shall be a QDRO transferring the sum of $66,400 from the husband’s SKANDIA retirement account to the wife as property settlement. The husband shall bear the cost of the QDRO preparation.
OTHER
Each party shall be responsible for their own counsel fees.
Each party shall be responsible for debts as listed on their financial affidavits.
CT Page 12177