2007 Ct. Sup. 6959
No. FA 06-4103491SConnecticut Superior Court Judicial District of New London at Norwich
May 9, 2007
MEMORANDUM OF DECISION
CYNTHIA K. SWIENTON, Judge.
This dissolution of marriage action seeks the termination of the parties’ thirteen year marriage. The action was commenced by complaint dated December 21, 2005.
The parties, represented by counsel, appeared at trial on four separate days. On the first day of trial, after returning from the lunch recess, the defendant suffered a severe asthma attack and was escorted from the building by ambulance. The trial was continued to another day, and on the eve of the second day of trial, the defendant was admitted to the hospital with complications due to her asthma. The trial eventually resumed two weeks later. The court heard testimony from the parties as well as five other witnesses, including the guardian ad litem for the minor children, and received into evidence twenty-one exhibits. All of the evidence was considered by the court, as were the provisions of General Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-81, 46b-82, 46b-84, and 46b-215a, as well as the provisions of the Child Support Guidelines.
FINDINGS OF FACT
The parties married on December 21, 1994, and have two minor children, Sean, born June 24, 1994, and Kyle, born July 15, 1997. They purchased their marital residence in September 1996. Other than a few other facts about their marriage and their backgrounds, the majority of the trial focused on the animosity and discourse that has been occurring between these two parties for the past two plus years. Oddly enough, at the beginning of the trial, the court was presented with a Stipulation of the Parties as to Parental Responsibility, which set forth a detailed shared custodial agreement. The court, after hearing testimony from the defendant about several alleged sexual assaults, refused to accept the agreement as to custody.
The defendant was the first to testify, called by the plaintiff’s counsel. The court observed her to exercise no self-restraint. During CT Page 6960 her testimony, she draped herself across the bench, and described the alleged incidents between herself and the plaintiff in detail, appearing to thrive on the attention and drama of the trial. The court could find little credibility in her testimony. She is forty-four years old, has an associates degree in accounting, and runs a home daycare facility at the marital residence. She suffers from asthma and various allergies and takes steroids as well as other allergy medications.[1] The only medical evidence the court received from the defendant was a letter from a medical doctor pertaining to her admission to the hospital on the eve of the second day of trial for an exacerbation of asthmatic bronchitis, which the court requested. (Plaintiff’s Exh. 6.) She denies abusing alcohol, and stated that she drinks responsibly.
The plaintiff filed a motion in limine to preclude the defendant from submitting any evidence regarding her income, other than her sworn financial affidavit. The court granted the motion in limine due to the fact that the defendant failed to comply with any of the discovery prior to the trial. For example, she was served with a Notice of Deposition as well as a request to bring certain documents. (Plaintiff’s Exh. 5.) She did not bring one document to the deposition. The plaintiff filed interrogatories as well as a request for production months prior to the trial. She produced nothing, stating she didn’t know she had to bring the documentation. Finally, ONE day prior to trial, she forwarded to the plaintiff incomplete documentation. She did provide some records after the second trial date, which was postponed due to her hospitalization, however they still were incomplete. The court, finding that the defendant failed to comply, prohibited her from introducing evidence of her income, other than accepting her financial affidavit.
The plaintiff testified that the defendant’s personal gross income is presently $60,000, or approximately $1,153 per week, which she had provided on at least one loan application and statements she made to the plaintiff as well as to other friends in his presence. Her financial affidavit showed a gross income of $515 per week, or $26,780 per year, and a net income of $323 per week. The plaintiff claims that the defendant’s income is approximately $60,000 from her daycare business, and, in fact, refused to file joint tax returns for 2005 and 2006 because he believed she was misrepresenting her income. Although a gross income of $60,000 seems somewhat high, the court finds the defendant to be not credible in her representation of her income on her financial affidavit. Accordingly the court is accepting the evidence of the plaintiff that the defendant’s weekly earnings and/or weekly earning capacity is a gross weekly income of $1,154, and a net weekly income of $826.[2]
CT Page 6961 The plaintiff is 38 years old, in good health, and employed by Pfizer as a metal trades technician. In addition to his employment at Pfizer, he also performs odd jobs with various friends. His gross yearly salary through Pfizer is approximately $75,000, with a net yearly salary of approximately $50,000. During the marriage, he also worked second jobs, assisting various friends with weekend jobs, earning an additional $3,000 to $5,000 per year. Because he now has access with the children during the weekends, he is unable to work a second job, and therefore, the court finds his gross income to be $75,000 and his net yearly salary $50,000.
The couple has two children, Sean and Kyle. Sean has some serious sight and hearing problems stemming from his premature birth as well as contracting meningitis when he was five or six months old. He is legally blind and has a profound hearing loss, which has resulted in some educational issues and learning disabilities. Other than asthma and allergies, Kyle has no other issues. Neither child have any behavioral problems, although there has been an issue of tardiness and unexcused absences with the school.
The guardian ad litem participated extensively in the trial. He provided the court with his observations and recommendations and submitted additional observations towards the end of the trial. He indicated that, “[g]iven the outrageousness of the defendant’s antics, one could easily overlook other, more subtle facts.” He observed that the defendant is the organizer and planner of the family, handling Sean’s educational issues effectively, and the plaintiff admitted that she should have the decision-making authority with regard to the children’s educational issues. The plaintiff isn’t the greatest organizational person, and the defendant is a marvelous resource for the children. “The boys are typical: they revel in their mother’s love and care, but they also crave their father’s attention and approval.” (Observations and recommendations of the Guardian ad litem.) He pointed out that the defendant can at times be “overwhelmingly verbal” and that the father and others claim that “he and the boys have been the targets of these outbursts.” Nevertheless, the guardian ad litem kept his recommendation of joint legal and physical custody, stating that is in the best interests of the boys.
The court has grave concerns about the ability of the parties, particularly the defendant, to carry out a shared custodial arrangement which requires extensive communication and contact. She seemed to have no grasp on the damage she was inflicting by her alleged claims of sexual abuse and alcoholism by the plaintiff. After repeated admonitions by the court as to her behavior in the trial, she continued with verbal CT Page 6962 outbursts. In observing the plaintiff, he appeared able to cooperate with the defendant accommodate her requests, reach agreements, and remarkably put any personal animosity behind him so as to not affect the children.
For example, the plaintiff was to have access with the children on Christmas Day, and after intervention by the guardian ad litem, the plaintiff agreed to let the defendant have access with the children from 10 a.m. until 2 p.m. Because the defendant’s brother was coming up from Florida, the plaintiff agreed to extend the time until 4 p.m. He received a phone call from the defendant stating she wanted the boys to stay longer. His mother went to pick up the boys and they had just sat down for Christmas dinner, and the defendant did not let the boys leave until 5:30 p.m.
The marital residence was purchased in 1996, and presently is valued at $242,500. There is a home equity loan outstanding with a balance of approximately $87,000. (Defendant’s Exh. I). In 2005 the original mortgage was refinanced, and the parties withdrew approximately $200,000 in order to purchase a lot. The lot was never purchased, and the majority of the proceeds were applied towards the principal, and $40,000 applied to the payments, so that no payments are due on the mortgage until 2011. The parties also own a timeshare with an approximate value of $6,500.
The plaintiff through his employer has a pension with a value of $20,900, a pension through the Pipefitters Union with a value of $21,200, a 401K through the union with an approximate value of $11,000, and a 401K through Pfizer with a net value of $46,000.[3] In addition, the parties have a Putnam Investments account in the amount of $10,000 and 100 shares of Pfizer stock with a value of $2,300.[4]
The plaintiff claims that the cause of the breakdown of the marriage was the defendant’s behavior as exhibited at trial — very vocal, very emotional, very unstable. The defendant claims that the cause was the plaintiff’s drinking and physical abuse. The defendant acknowledged that two to three years ago he began drinking more, acknowledged that it was unacceptable, largely in part because of his children seeing him and his subsequent drunk driving arrest. As of January 1, he stopped drinking. Then there is the question of the physical abuse. He reported three incidents. The first was in 2003, when he went out drinking and came home drunk. The defendant was yelling and wanted him to leave. He stood up and his head hit her cheek. He was arrested and the charge was later dismissed after the defendant said it was an accident.
CT Page 6963 The second time was in 2005 when he could not find his cellphone after the defendant had thrown it in the neighbor’s yard. She slammed the door on him which left a bruise, he came into the house, and she then threw a lamp at him, which lacerated his elbow. He called the police and she picked up a soldier nutcracker and hit herself on the cheek. No arrest was made of either party.
The third incident was in 2006. They were sitting down having dinner and she smashed a frying pan on the glass stove top. She then took a calculator and struck herself in the eye. The police took their statements and talked to the boys, and one of them said he saw their mother strike herself in the eye with the calculator.
The court finds that the marriage has broken down irretrievably and that both parties contributed to its breakdown.
ADDITIONAL FINDINGS AND ORDERS
The court makes the additional findings and enters the following orders:
Jurisdiction.
The court has jurisdiction in this matter which has been pending for more than ninety days. The allegations of the complaint are proved and true, including the allegation that the marriage has broken down irretrievably. The State of Connecticut is not contributing to the support of the parties or their children in this action. A decree of dissolution shall enter.
Custody and Visitation.
The court credits the thoughtful testimony and observations of the guardian ad litem who was considering only the best interests of the children. He had an opportunity to meet with and visit the children, the parties prior to the trial, as well as the homes of each party. Although the court has expressed reservations regarding a shared custodial arrangement, the court will accept most of the recommendations of the guardian ad litem.
The parties shall share joint legal and physical custody of the minor children, and the children shall be allowed free access to each of their parents when circumstances and their needs arise. The parties shall consult with each other concerning all major decisions affecting the children’s lives, and the parties shall discuss and agree with regard to CT Page 6964 the same keeping in mind the best interests of the children. If the parties are unable to agree on issues concerning the children, after consulting with the defendant, the plaintiff shall have the final decision-making authority. The parents shall be the primary caretakers of the children and should be mostly in their care whenever possible and practical. The access with the children shall be governed by the plaintiff’s current employment and rotating schedule. On the first day of the plaintiff’s four days off, he shall have responsibility for the children from after school, overnight, until his fourth day off in the morning when the children are due at school. If the plaintiff’s access begins on a weekend day, it shall begin at 10 a.m. If the plaintiff’s access ends on a weekend day, the defendant shall pick up the minor children from the plaintiff or an appropriate care giver at 10 a.m.
The children shall take the school bus to and from the plaintiff’s home during the school week.
The parties shall have additional access with the children as they may reasonably agree.
Holiday access shall be as follows:
President’s Day, Memorial Day, Labor Day and Columbus Day shall be spent with the parent who has the children for the weekend.
Easter shall be split between the parties with transfer at 3 p.m.
July Fourth shall be split equally between the parties with transfer at 3 p.m.
Father’s Day and the plaintiff’s birthday shall be spent with the plaintiff. Mother’s Day and the defendant’s birthday shall be spent with the defendant.
Halloween shall be split with the available time equally.
Thanksgiving shall be alternated, with the plaintiff having the children on Thanksgiving Day from 10 a.m. to 6 p.m. in odd-numbered years; the defendant in even-numbered years.
Christmas shall be split as follows: the plaintiff shall have the children on Christmas Eve from 10 a.m. until Christmas morning at 10 a.m. in even-numbered years and the defendant in odd-numbered years. The defendant shall have the children on Christmas day from 10 a.m. until December 26, 10 a.m. in odd-numbered years, and the defendant in CT Page 6965 even-numbered years.
Vacation access shall be as follows:
The parties shall continue to follow the regular access schedule during the summer, except that each parent shall have two weeks of vacation with the children, taken non-consecutively, each year. The plaintiff shall first decide his summer weeks by May 15 and communicate his choice to the defendant in writing by that date. The defendant shall then select her weeks by May 31 and communicate her choice to the plaintiff in writing by that date.
The parties shall alternate the children’s Christmas, February and April school vacations with the plaintiff having February in odd-numbered years, and Christmas and April in even-numbered years.
Holidays and specifically designated days and times shall override the regular scheduled access.
Parental responsibility.
Each party shall exert every reasonable effort to maintain free access and unhampered contact between the children and the other parent. The parties should be flexible in their approach to the access schedule and contact in order to allow for unanticipated changes and altered circumstances.
Each party shall at all times keep the other informed of his/her place of residence (including address and telephone number). Neither shall move from their present residence without informing the other by mail, return receipt requested, and ninety (90) days has elapsed from the date of the mailing. The parties also agree to keep the other reasonably informed of the whereabouts of the children at such times that they are with him/her.
Each party shall be entitled to complete information from any physician, dentist, psychologist, psychiatrist, consultant or specialist attending to the children for any reason whatsoever and shall be furnished with copies of any and all reports and documentation available regarding such upon reasonable request to the provider.
The parties shall keep each other informed of any illness or accident or other circumstance seriously affecting the health or welfare of the children, he/she shall promptly notify the other and both parties shall have reasonably unlimited access to the children, consistent with the CT Page 6966 circumstance, so long as the situation continues.
Child support.
Based upon the court’s findings of income of the parties, the court finds the presumptive child support amount to be $190 if paid by the defendant and $214 if paid by the plaintiff. The court shall enter no child support orders due to the shared physical custody and shall indicate the deviation.
The plaintiff shall claim the minor child, Sean, and the defendant shall claim the minor child, Kyle, as an exemption for state and federal income tax purposes for so long as each child qualifies as a dependent.
The court shall retain jurisdiction to enter post-majority support orders pursuant to General Statutes § 46b-56c.
Health insurance.
1. The plaintiff shall maintain and pay for health insurance benefits for the children as reasonably available through his place of employment, until the children (a) dies, (b) marries, (c) becomes wholly emancipated, or (d) attains the age of eighteen (18) years. Uncovered, unreimbursed health care expenses incurred for the children shall be shared equally by the parents, 50/50. Neither party shall incur any single uncovered/unreimbursed health care expenses in excess of $100 on behalf of the minor children without agreement from the other, absent any emergency situation. The provision of General Statutes § 46b-84(e) shall apply.
2. The plaintiff shall promptly notify his employer as to the change of marital status and shall cooperate with the defendant in obtaining continuing health insurance coverage as provided by state and federal law. The plaintiff shall be responsible for the payment of the first twelve (12) months of premiums due for such coverage and the defendant shall be responsible for all future payments of premiums. Said payment by the plaintiff shall be in the nature of support, and therefore tax deductible for him and includable to the defendant.
Alimony.
The defendant currently runs a day care facility based in the marital home; however, she has an accounting degree. She may be able to obtain other employment, but may need a period of time in order to return to the work force or focus on her day care business. Based upon the CT Page 6967 statutory factors, including the age, education, earnings and work experience of the defendant, a time-limited award of alimony is appropriate. Ippollito v. Ippollito, 28 Conn.App. 745, 612 A.2d 131, cert. denied, 224 Conn. 905 (1992); and that in making its award, the court has taken into consideration the division of the marital property pursuant to General Statutes § 46b-81(c). The plaintiff shall pay to the defendant alimony at the rate of $150 per week for a period of five (5) years by immediate wage withholding order. Said alimony shall be non-modifiable as to term or amount, unless the defendant dies, remarries or cohabitates as defined by statute, whichever occurs first.
Property settlement.
1. The parties are joint owners of property located at 14 Kingwood Drive, North Stonington, Connecticut, and pursuant to the defendant’s Exhibit F the value of this property is $242,500 and currently has one mortgage with a balance of $86,998.23. (Defendant’s Exhibit I.) The plaintiff shall quitclaim to the defendant all of his right, title and interest in and to the property located at 14 Kingwood Drive, North Stonington, Connecticut, within thirty (30) days from the date of this Memorandum. Thereafter, the defendant shall have exclusive possession of the property, subject to the existing indebtedness, and she shall be responsible for the payment of the mortgage, taxes and insurance and shall indemnify and hold the plaintiff harmless from any further liability thereunder.
The plaintiff shall exert her best efforts to refinance the current mortgage or have the defendant discharged as an obligor on the existing debt as soon as practicable and no later than May 9, 2008.
2. The defendant shall retain as her sole and separate property the time share in Sanibel Island, Florida, free of any claim of right, title or interest by the plaintiff. The defendant shall be responsible for all expenses or debts associated therewith, and she shall indemnify and hold the plaintiff harmless from liability on the same.
3. The plaintiff shall retain as his sole and separate property the entirety of his Connecticut Pipe Trades Local No. 777 Annuity Fund, his Connecticut Plumbers and Pipefitters Pension Fund, his Pfizer Savings Plan, his Pfizer Retirement Annuity Plan, and his Putnam Investments account. The defendant shall waive any claim of right, title or interest in and to said pensions, annuities and accounts. The plaintiff shall be solely responsible for the loan taken against his Pfizer Savings Plan.
4. The plaintiff shall retain the 100 shares of Pfizer stock free and CT Page 6968 clear of any claims by the defendant.
5. Except as otherwise set forth herein, each party shall be entitled to keep their respective savings and checking accounts free and clear of any claims by the other.
Personal property.
Each party shall retain as his or her sole and separate property all items of personal property in his or her possession as of the date of judgment, free of any claim of right, title or interest by the other.
The plaintiff shall retain the 2001 Dodge Ram free of any claim of right, title or interest by the defendant. The plaintiff shall be solely responsible for debts and expenses associated with said vehicle and he shall indemnify and hold the defendant harmless from liability thereon.
The defendant shall retain the 2004 Chevy Suburban and the 2000 Mitsubishi Eclipse free of any claim of right, title and interest by the plaintiff. The defendant shall be solely responsible for the payment of any and all debts or other liabilities associated with said vehicles and she shall indemnify and hold the plaintiff harmless from liability thereon.
Daycare business.
The plaintiff shall waive any claim of right, title or interest in and to the defendant’s daycare business, known as Kid Comp, d/b/a Lori Zeppieri.
Debts and liabilities.
The parties shall be equally responsible for the following joint debts: CitiUpromise, Chase, and MBNA. Each shall indemnify and hold the other harmless from liability on his or her respective share. The defendant shall be solely responsible for the Target Visa debt and the plaintiff shall be solely responsible for the Home Depot debt and each shall hold each other harmless from these liabilities. No further expenses shall be incurred under these joint debts and each parties’ share shall be paid off completely within twelve (12) months from the date of this judgment.
Life insurance.
The plaintiff shall maintain the $50,000 life insurance policy CT Page 6969 currently provided through his place of employment and shall name the defendant as Trustee for the children as the irrevocable beneficiary of said policy. The plaintiff shall provide the defendant with an authorization allowing her to periodically check the policy.
Fees.
Each party shall be responsible for their own counsel fees. The parties shall share equally the fees of the guardian ad litem, with credit given to each party for previous payments, the court having found his fees fair and reasonable. The guardian ad litem’s fees shall be in the nature of support and therefore non-dischargeable in bankruptcy.
CT Page 6977