2006 Ct. Sup. 15724
No. FA-05-4101858SConnecticut Superior Court Judicial District of Waterbury Middlesex Regional Family Trial Docket at Middletown
August 28, 2006
MEMORANDUM OF DECISION
ELIZABETH A. BOZZUTO, JUDGE.
This is an action for dissolution of marriage brought by way of writ, summons and complaint dated April 4, 2005, right on the heels of the plaintiff’s application pursuant to C.G.S. § 46b-15
for “relief from abuse,” always a bad way to start a dissolution action. In any event, both parties appeared through counsel[1] and the matter was claimed to the fully contested trial list on or about December 7, 2005. The matter was thereafter referred to the Regional Family Trial docket at Middletown Superior Court.
On February 14, 2006, the parties resolved all issues of custody and visitation relative to the two minor children. With the parties unable to resolve the financial issues subject of this litigation, and after a mistrial at the regional family trial docket at Middletown Superior court,[2] the matter was referred to this court for trial.
Most of the testimony offered during the course of this multi-day trial revolved around a singular event which occurred on March 21, 2005, the same incident subject of the above-referenced § 46b-15 application. It would appear to this court that the facts surrounding this event have been and continue to be not only hotly disputed but a lightening rod for this litigation. If the court didn’t know better, one would think that the plaintiff consumed her case with the allegations of assault to justify her position relative to custody and the resulting attorneys fees incurred in this case and the defendant tried the case in an effort to portray the plaintiff as someone who embellishes in an effort to distance the children from the defendant or otherwise prolong this litigation, which resulted in the unnecessary accumulation of attorneys fees. CT Page 15725 In any event given the testimony, or actually lack thereof as it pertains to the defendant,[3] this court has no doubt that the defendant struck the plaintiff on March 21, 2005, as well as on at least one prior occasion. In addition, this court also has no doubt that the assault of March 21, 2005 was not a 15-minute pummeling as the plaintiff would have this court believe.
The plaintiff’s concern for the children’s well being given the defendant’s conduct was justified, but sufficiently addressed, long ago, not only by the judicial system, by way of a guardian ad litem and the assistance of court support services, but also by the intervention and oversight by the department of children and families for close to a year. As to the issues in the context of this phase of this litigation, it is time to let the March 21, 2005 incident rest. The plaintiff is free to take up the events of that day in the context of other litigation, if she so chooses. To be clear, what is before this court has nothing to do with custody, nor personal injury. This court is left with the rather narrow task of dividing up the marital estate and addressing issues of support.
So, as to the task at hand, the court finds that the parties were married on September 6, 1998 in Bloomfield, Connecticut. The plaintiff has resided in the State of Connecticut for at least twelve months prior to the bringing of this action. Two children have been born to the parties since the date of the marriage, to wit, Jared, d/o/b 2/6/2002 and Hannah, d/o/b 4/14/2003. No other children have been born to the parties since the date of marriage and the plaintiff is not currently pregnant. Neither the plaintiff nor the defendant have been the recipient of state or local assistance.
The marriage between the parties has broken down irretrievably with no hope of reconciliation. The court will not attribute fault to either party. Both of the parties’ interpersonal styles, as demonstrated during the course of this trial, would not appear to be conducive to the partnership required in marriage. Both parties appear to be prone to confrontation, compulsiveness and distortion, and neither party appears mentally equipped to handle its consequences. The whole trial was a clear display of their marital dysfunction.
The plaintiff is 46 years old and this is her second marriage. She testifies to suffering from a series of ailments, including CT Page 15726 “post traumatic stress syndrome” (PTSD). The court does not recall that the plaintiff specifically testified as to what precipitated the onset of PTSD, but can only assume, given the plaintiff’s posture in this case, that it was a result of the March 21, 2005 incident. Even if the same were true, which this court doubts, there was no testimony, expert or otherwise, that would support such a diagnosis, regardless of its onset. Further, there was no ailment offered by the plaintiff that would render her unemployable or otherwise with a diminished earning capacity.
The plaintiff earned a bachelors degree from the University of Rhode Island in 1982, a masters in public administration from the University of Hartford in 1984 and a juris doctorate degree from Quinnipiac University School of Law in 1990. The plaintiff has yet to pass the bar examination and thus has not been admitted to the practice of law in any state. In 2002, the plaintiff obtained a life and health insurance agents license.
The plaintiff last worked in a full-time capacity before her son was born. The plaintiff testified that she and the defendant agreed that she would primarily stay home and tend to the children and the defendant would provide the income. Since the birth of their first child, the plaintiff has maintained part-time employment in a variety of positions, from legal work to insurance sales. The plaintiff’s employment abilities are varied, current and marketable. The plaintiff’s wages, as depicted on her current financial affidavit, appear to be grossly depressed and do not correlate to the amount of time the plaintiff commits the children to outside care, including the Russian nannies, Kiddie Campus day care and the time the children are with the defendant, or engaged in other activities. The plaintiff’s financial affidavit of February 3, 2006 indicates the plaintiff grossed $450 per week and netted $344.72 per week. At the very least, given the plaintiff’s work history and educational background, she has a capacity to earn approximately $23,000 per year and probably more. With standard deductions, the plaintiff’s average net weekly wage would be approximately $335 per week.
At the time of the marriage, the plaintiff owned property located at 67 Knollwood Rd., West Hartford, Connecticut. This property was sold in October of 1998, just shortly after the parties’ marriage. The proceeds realized by the plaintiff from the sale of this property were $8,200. Additionally, the plaintiff had some personal property, an encumbered automobile CT Page 15727 and student loans. The plaintiff’s student loans and auto loan were paid off in full during the course of this marriage.
Similar financial information offered by way of testimony as to the defendant was non-existent during the trial. The only thing the court was provided with is plaintiff’s exhibit 25, which is the transcript from the defendant’s deposition taken February 2, 2006. A reading of the transcript, when taken in conjunction with the defendant’s limited in-court testimony, portrays a difficult and obstreperous witness, who was often assisted or actually, saved by his lawyer. Most objections made and/or privileges invoked during the defendant’s deposition would not have been sustained by this court. The deposition provided little benefit to this court. In any event, the defendant is 48 years old and appears to be in good health, physically. He obtained a bachelors degree in 1979 from the University of Rhode Island and a masters degree in 1981 from Michigan State University.
The defendant has been employed by Linder Motors, a business owned equally by the defendant’s father, Herb Linder and his uncle, for the past 18 years. The company has provided the defendant with a sizable salary, autos for the family and medical insurance for the family. The defendant’s W-2s or social security statement,[4] show the following gross income:
2001 $132,695.00 2002 $137,980.00 2003 $138,480.00 2004 $138,595.00
Despite a consistent and reliable salary during the course of this marriage, curiously, since the inception of this litigation, the defendant’s salary has decreased on two separate occasions. The first reduction came when a decision was made to close the rental department, a department managed by the defendant. The more recent reduction came as a result of the rental department being closed. The defendant currently grosses $95,680 and nets approximately $1,315 per week. In addition to his salary, the defendant is provided with a car and auto insurance for the car, at no cost to him. Further, the defendant is provided medical insurance for the benefit of the family at minimal cost. There was no evidence as to the actual value of these perquisite, a sum which should be added to his income.
Although the defendant’s salary decrease is suspect in the CT Page 15728 court’s mind and completely ignored by the plaintiff, there was no evidence offered to refute the decrease and it is a fact this court finds and one the plaintiff must appreciate and adjust to, sooner as opposed to later.
The parties initially resided together at 54 Rope Ferry Road, Waterford, Connecticut, a property owned by the defendant since 1988. This property was sold sometime during the marriage, probably in July of 2000. If defendant’s exhibit E-2 references the sale of this property, the defendant received approximately $43,000 from the sale of this property. The defendant testified at his deposition that the proceeds from the sale were used to purchase the marital residence located at 16 Colonial Drive, Waterford, Connecticut. This would appear unlikely in that the marital residence was purchased in August of 1999. The marital residence was purchased for $189,500, $151,000 of which was financed. The marital residence is currently occupied by the plaintiff and children. The court finds its current fair market value to be $325,000. The property is encumbered by a mortgage with a current balance due of approximately $85,600. This is by far the parties’ largest asset.
Additionally, at the time of the marriage, the defendant owned a time share in Orlando, Florida. The date of purchase or value at time of purchase is unknown to the court. Its current fair market value is $17,000.
The defendant also owned at the time of the marriage an investment account with AG Edwards, which included two IRAs and a single account with a consolidated value of $183,200 as of August 1998. In addition to these three accounts, the parties currently hold several other accounts with AG Edwards, including accounts held for the benefit of the minor children. The total current value of all accounts, both retirement and non-retirement, is approximately $146,809.76. The court would note that the value of these consolidated accounts as of January 31, 2006 was $194,421.99. There was a $50,000 withdrawal from the defendant’s individual account on February 3, 2006, the day after the defendant’s deposition. There was no explanation offered as to where these funds went, but wherever the money went, the court can only infer that it inured to the defendant’s benefit. In an effort to figure out this puzzle, the court did note that the defendant’s account statement for his Citizens Bank account shows a deposit of $28,353.64 on February 9, 2006. Whether this deposit is at all related to the $50,000 withdrawal remains a mystery to CT Page 15729 the court. The same Citizens Bank statement indicates that the defendant issued two separate checks, both to Bank of America on February 10, 2006, one for $19,692.87 and the other for $10,053.78. Regrettable, though, reviewing the Citizens Bank statements, of which there were only two submitted, raises more questions than it answers. The balance of the defendant’s Citizens Bank checking and savings account as of April 26, 2005 was $30,570.80. As of February 27, 2006 the account balance was $6,298.18. As of the date of the defendant’s financial affidavit filed for this proceeding the balance of this same account is $350.
The defendant also had an account with New London Security Federal Credit Union (NLSFCU) at the time of the marriage, which he continues to hold to this day. Currently, it would appear that the parties hold several accounts at NLSFCU, including accounts for the minor children. There was very limited, almost non-existent, evidence relative to the NLSFCU accounts. Defendants’ exhibit F6 would indicate that one account, ending in “810,” had a value of $92,063.83 and a joint account ending in “1907” had a value of $21,414.23 as of April 2005. The current status of these accounts is unknown to the court, but based upon the defendant’s financial affidavit, the total value of all monies held at NLSFCU is $30,285.38. There was no explanation provided as to what happen to this money over the last year and one-half, although it would not surprise the court if these funds are now the property of lawyers.
The defendant also came into the marriage with a baseball card and coin collection, as well as other personal effects.
During the course of the marriage the parties purchased two other timeshares. The court finds the fair market value of the Marriott Desert Springs timeshare to be $24,000 and the Flagship Resort time share to be $13,200.
The defendant also has an employer provided 401(k) with a balance of $30,500 as of December 31, 2005.
The parties’ combined debt, excluding the mortgage, is $42,000, substantially all being accumulated by the plaintiff over the past several months. Regardless of what this court does with this marital estate, it should be abundantly clear to both parties that significant changes have to take place relative to expenditures. With the plaintiff currently bringing in no income CT Page 15730 and the defendant with significantly reduced earnings, the parties’ prior spending habits should be history. There is simply not enough money to go around.
The court has considered all the relevant statutory criteria, including the length of the marriage, fault, the age, health, station, occupation of the parties, assets, amount and sources of income, skills, employability, debt, non-monetary contributions, acquisition and preservation of the estate, needs of each of the parties and the opportunity of each for future acquisition of capital assets and income and all other criteria set forth in C.G.S. § 46b-62, 46b-81, 46b-82, 46b-84, 46b-215b, 46b-56c and the child support guidelines.
The court enters the following orders:
A: BY WAY OF DISSOLUTION:
1) The marriage between the parties is dissolved and each party is declared to be single and unmarried.
B. BY WAY OF ALIMONY:
1) The defendant shall pay to the plaintiff as periodic alimony the sum of $350 per week for a period of 18 months from the date of this decree. Thereafter, the defendant shall pay to the plaintiff as periodic alimony the sum of $250 per week for a period of 30 months.
2) The provisions of C.G.S. § 46b-86(a) and 46b-86(b) are applicable, but the amount of said alimony shall not be modifiable in the event the plaintiff earns gross income of $25,000 or less in any given year.
3) The defendant shall maintain a policy of term life insurance on his life in the amount of $60,000 naming the plaintiff as irrevocable beneficiary for so long as he has an obligation to pay alimony.
C. BY WAY OF CHILD SUPPORT, MEDICAL INSURANCE, UNREIMBURSED MEDICAL EXPENSES, DEPENDENCY EXEMPTIONS, LIFE INSURANCE AND EDUCATIONAL SUPPORT
1) Based upon the parties’ submitted financial affidavits, the presumptive amount of child support for the two minor children is CT Page 15731 approximately $340 per week. The court makes a finding that the application of the guidelines is inequitable and deviates therefrom based upon the plaintiff’s earning capacity as set forth above in this memorandum of decision. The defendant shall pay to the plaintiff as and for child support for the two minor children the sum of $300 per week. The obligation to pay child support continues until the children reach the age of 18 or if still a full-time student, then until such time as each child graduates from high school or reaches the age of 19, whichever event first occurs. As provided by law, this order is subject to modification. So long as there is a child support obligation, the parties shall exchange W-2s, 1099s, tax returns and other evidence of income. Such information shall be exchanged on an annual basis no later than April 15 following the conclusion of each calendar year.
2) The defendant shall maintain the current and/or equivalent health insurance coverage for the benefit of the minor children for as long as such coverage is available to him through his place of employment at reasonable cost. In the event said health insurance coverage is not available to the defendant through his place of employment at reasonable cost and such health insurance is available to the plaintiff through her place of employment at reasonable cost, then the plaintiff shall provided such coverage for the benefit of the two minor children. In the event that such health insurance is not available to either party through their employment at reasonable cost, then the parties shall either work cooperatively to secure coverage under the Connecticut H.U.S.K.Y. program or procure some other policy of insurance for the children. The cost for this insurance shall be paid for by the parties in the same proportion as unreimbursed medical expenses are paid. This order enters pursuant to C.G.S. § 46b-84(d) and (e) as if fully set forth herein.
3) Any and all medically related expenses of the minor children, including medical, dental, orthodontic, psychiatric/psychological, prescriptions and optical expenses not covered by the above-referenced policy shall be shared by the parties, 40% payable by the plaintiff and 60% payable by the defendant.
4) The court finds more likely than not, the parents would have provided support to the minor children for higher education if the family were intact. The accounts currently held for the benefit of the children at AG Edwards and NLSFCU shall not be CT Page 15732 invaded for any reason other than the children’s post-high school education. These accounts shall be maintained by the defendant. Upon reasonable request by the plaintiff, the defendant shall provide a current statement regarding the status and balances of the accounts. It is unlikely that these accounts will cover all of the children’s post-high school costs. Thus, the court will reserve jurisdiction to enter an educational support order pursuant to § 46b-65c.
5) For tax years 2006 and 2007 the defendant shall be allowed to claim both children as dependants for purposes of state and federal tax filing. Thereafter, the plaintiff shall be entitled to claim Jared and the defendant shall be entitled to claim Hannah. When only one child is eligible to be claimed, the parties shall alternate the exemption, with the plaintiff having the exemption in even years and the defendant in odd years.
6) The plaintiff shall maintain a life insurance policy in the amount of $100,000 naming the children as irrevocable beneficiaries for so long as there is a legal obligation to support the children. The defendant shall maintain a life insurance policy in the amount of $300,000 naming the children as irrevocable beneficiaries for so long as there is a legal obligation to support the children.
D. BY WAY OF PROPERTY ORDERS
1) The defendant shall forthwith transfer all his right, title and interest in 16 Colonial Drive, Waterford, Connecticut to the plaintiff. Simultaneous therewith, the plaintiff shall execute and deliver to the defendant a promissory note payable to the defendant in the amount of $50,000.00, bearing simple interest at the rate of 2.5% per annum until paid in full. Said note shall be secured by a second mortgage on the marital residence. All principal and accrued interest on said note shall be paid in full upon the first occurring event: a) the residence is no longer the children’s primary residence; b) the plaintiff’s remarriage or cohabitation as set forth in C.G.S. § 46b-86; c) the sale of the marital residence; d) default on the current mortgage or home equity loan or any subsequent encumbrance; e) the youngest child reaches the age of 18 years; or f) the plaintiff’s failure to refinance or otherwise remove the defendant’s obligation from the existing mortgage within three years from the date of this decree. The plaintiff shall assume all costs and expenses associated with the marital residence, including the mortgage and CT Page 15733 hold the defendant harmless thereon and indemnify. The plaintiff shall refinance or otherwise have the defendant’s name removed from the existing mortgage no later than three years from the date of this decree.
2) The plaintiff shall forthwith transfer all her right, title and interest in the Orlando, Palm Springs and Atlantic City Timeshares. The defendant shall thereafter assume all expenses and costs associated with said timeshares and hold the plaintiff harmless. The plaintiff shall execute whatever documents are necessary to effectuate the intent of this provision.
3) The parties shall evenly divide the state and federal tax refund monies.
4) As for all bank accounts, the plaintiff shall retain her Essex Bank savings account and her Bank of America checking and savings account. The defendant shall retain his Citizens Bank checking and savings account and the NLSFCU savings account with an approximate balance of $8,358.13. As for the NLSFCU joint savings account with an approximate value of $21,927.25, the same shall be divided evenly between the parties.
5) As for all deferred compensation accounts, the plaintiff shall retain her IRA. The defendant shall retain the Linder Motors 401k, his “traditional IRA” and his “Roth IRA.”
6) As for stock, bond and mutual fund accounts, the defendant shall retain the AG Edwards account A, account B and the joint account and transfer to the plaintiff forthwith the sum of $10,000.00.
7) The plaintiff shall retain the 2005 Chevy Astrovan and assume all responsibility for any and all costs and expenses associated therewith.
8) The defendant shall retain his baseball card collection, coin collection and other collectibles contained in his safe deposit box, as well as the frequent flyer miles.
9) The parties shall resolve all issues of personal property between themselves no later than 60 days from the date of this decree. In the event the parties are unable to resolve any issue of personal property within the 60 days, they shall submit the dispute to the family services office in New London Superior CT Page 15734 Court for resolution. Absent agreement, the matter shall be returned to court.
E. BY WAY OF DEBTS:
1) Each party is responsible for the debts as listed on their respective financial affidavits, submitted at the time of trial, and shall indemnify and hold the other harmless thereon.
F. BY WAY OF ATTORNEYS FEES
1) Both parties are responsible to pay for their own attorneys fees.
2) As for the GAL, the court finds his services and fees reasonable. The plaintiff shall be responsible to pay 40% and the defendant 60% of the GAL’s outstanding fees and costs. The same shall be paid within 60 days.
G. MISCELLANEOUS
1) Each party shall be responsible to provide for their own health insurance needs.
2) The parties’ stipulation relative to custody and visitation dated February 14, 2006 is fully incorporated herein.
SO ORDERED.
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