Opinion
FA155035644
07-29-2016
Pamala Balisciano v. Frank Balisciano
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth L. Shluger, J.
The plaintiff who was a resident of Madison, Connecticut initiated this action for dissolution of marriage. At the time, the defendant was also a resident of Madison, 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 June 27, 2016 and then to July 25, 2016. Both parties appeared at trial and were represented by counsel.
The court has fully considered the criteria of General Statutes § § 46b-81, 46b-82, 46b-84, 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 were married on August 25, 1988 at Madison, Connecticut. It was a second marriage for both and each had children from previous marriages.
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.
4. There are no minor children born to the wife since the date of the marriage.
5. Neither party has received assistance from any State or local agency.
6. The plaintiff wife is 60 years old and in good health.
7. The defendant husband is 69 years old and is in fairly good health.
8. The wife retired as a secretary from the City of Middletown after 31 years of service. The wife receives a pension in the amount of $839 per week and after five years of unemployment, has begun working in a deli restaurant earning approximately $160 per week.
9. The husband retired as a school principal after 31 years of service, but by waiving his right to receive an annuity valued at $40,000 he retired with 35 years of service. He now works part time as a realtor. The husband receives a pension in the amount of $1,538 per week plus $183 per week in Social Security benefits and claims to earn an additional $218 per week as a real estate agent.
The former marital home was purchased in 1987 with a $50,000 down payment from the wife. During the course of the marriage, the parties made substantial improvements and renovations to the former marital residence, including $50,000 for a renovation in 2000 for the husband's parents' in-law apartment (paid for by the in-laws who moved in) and $50,000-$60,000 for general improvements and renovations in 2010. The court will give credit to neither party for these sums which were used to acquire and improve the marital residence as they are remote in time.
The parties sold their former marital residence in July 2016 and received $188,646 after paying all expenses. The husband received $25,323 of that amount and the wife received the balance of $163,323. In addition, the wife took possession of a bank account at Mid-Conn Bank in the amount of $22,000.
The only other assets include the wife's 2007 Lexus motor vehicle valued at $7,300, the wife's personal property valued at $5,800, the husband's Hyundai motor vehicle with a negative equity of $6,000 and a jointly owned condominium in Las Vegas with a negative equity of $48,000.
The debts of the parties include the wife's debt in the amount of $4,400, the husband's credit cards in the amount of $56,000 and an anticipated joint debt to the IRS in the amount of $15,000 and an anticipated joint debt to the DRS in the amount of $2,800. The wife presently has attorneys fees of $1,400.00 and the husband has attorneys fees of $20,499.02 still due and owing. The Court finds the tax debt to be joint and the credit card debts to be the responsibility of the parties themselves.
The parties both asked in their prayers for relief that the wife receive alimony until her death, remarriage or cohabitation but they disagreed as to the amount. Nonetheless, considering the length of the marriage, the disparity of retirement incomes and the limited property to distribute, the Court finds that permanent alimony is called for. The parties stipulated and agreed that each party would retain their own pensions, motor vehicles, pay their own attorneys fees, provide for their own health insurance and that the husband would maintain his existing life insurance policy so long as there is an alimony obligation. The parties disagreed as to the disposition of the proceeds from the sale of the marital residence.
The issue of the Las Vegas condominium is challenging. It is jointly owned and jointly mortgaged together with the husband's brother. It has a negative equity of nearly $50,000 and a negative cash flow from the tenant, who resides there. It was purchased during the course of the marriage as an investment or as a retirement for the husband's parents but it is clearly a liability to whoever is saddled with the property in the future.
During the course of the marriage, the parties kept their money separate and apart. The husband paid certain living expenses and the wife paid certain other living expenses.
The husband is a chronic gambler and has been for the entire marriage, but for various periods of time when he abstained. He made only a half-hearted attempt at Gambler's Anonymous. He was forced to declare bankruptcy in 1998 as a result of his gambling debts. Neither party was able to quantify the amount of the husband's gambling losses. The wife's attorney was able to elicit from the husband that he gambled approximately $102,000 between January 1, 2016 and May 31, 2016, with losses of approximately $10,000 or $2,000 per month. The wife's attorney was also able to prove that the husband lost approximately $15,000 in June 2015, based on a reduction in his Webster Bank account. The wife's attorney was also able to demonstrate that in just one month, August 2013, the husband had cash advances of approximately $4,400. A review of the husband's bank records reveals hundreds of ATM cash advances over the years and infers that they are a result of his gambling addiction. The husband also admitted that the $56,000 of credit card debt which he presently owes is all attributed to gambling debt. He is still presently gambling and apparently unable to stop.
If the court were to ignore the earned income of the parties and just focus on the pensions and Social Security payments, the wife receives $839 per week and the husband receives $1,721 per week or $882 per week more. The wife is requesting alimony of $625 per week and the husband is proposing that he pay alimony of approximately $256 per week. If the husband paid alimony to the wife in the amount of $441 per week they would be on parity of retirement incomes and be free to earn whatever they are able thereafter.
At the time of separation, the wife received $163,323 from the sale of the marital residence and the husband received $25,018 from the sale of the marital residence, all of which he lost to gambling except $5,300 which remains. The husband then wrote checks as cash advances against the wife's bank account in the amount of $19,300, which should be considered marital funds given to him. The wife took $14,000 to buy her daughter a motor vehicle and took $2,000 to buy Christmas gifts which should be considered marital funds given to her. The wife took $22,000 from the Mid-Conn Bank account which should be considered marital funds given to her. The court concludes that the husband has received $25,018 plus $19,300 or $44,318. The court concludes that the wife has received $163,323 plus $22,000 or $185,323.
At this time, the only assets are the wife's bank account in the amount of $142,684, the wife's motor vehicle valued at $7,265 and the husband's bank account in the amount of $5,300.
The wife claims that as a result of the husband's dissipation of marital assets, she should be entitled to the balance of cash account, the only remaining marital asset. The husband argues for a more fair division. The wife claims that she should receive the lion's share of the marital property because the husband dissipated marital assets through the purchase of the Las Vegas condominium and his gambling. The gambling debts are found to constitute dissipation of assets; the purchase of the Las Vegas condo is not.
LEGAL DISCUSSION
" Generally, dissipation is intended to address the situation in which one spouse conceals, conveys or wastes marital assets in anticipation of a divorce. See 2 B. Turner, Equitable Distribution of Property (3d Ed. 2005) § 6:102, p. 539. Most courts have concluded that some type of improper conduct is required before a finding of dissipation can be made. Thus, courts have traditionally recognized dissipation in the following paradigmatic contexts: gambling, support of a paramour, or the transfer of an asset to a third party for little or no consideration." (Footnotes omitted.) Gershman v. Gershman, 286 Conn. 341, 346, 943 A.2d 1091 (2008). The court in Gershman stressed that " [p]oor investment decisions, without more, generally do not give rise to a finding of dissipation." Id., at 348, 943 A.2d 1091, and cases cited therein. It concluded that, " at a minimum, dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage." Id., at 351, 943 A.2d 1091. O'Brien v. O'Brien, 161 Conn.App. 575, 589-93, 128 A.3d 595, 604-06 (2015).
In Gershman, supra, our Supreme Court was faced with the question of " what, as a matter of law, constitutes dissipation in the context of a marital dissolution proceeding." Id., at 346, 943 A.2d 1091. The court concluded: " [A]t a minimum, dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage." Id., at 351, 943 A.2d 1091. See, Shaulson v. Shaulson, 125 Conn.App. 734, 740, 9 A.3d 782, 785 (2010). Accordingly, the court can and will make a downward adjustment in the husband's share of the marital assets since he has acted in a way to cause a dissipation of marital assets.
During the pendency of the dissolution and as recently as this month, the husband has been gambling and losing at Foxwoods in violation of the automatic orders. The court's automatic orders, applicable during the pendency of all marital dissolution actions, are set forth in Practice Book § 25-5(b) and provide in relevant part: " (1) Neither party shall sell, transfer, exchange, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, except in the usual course of business or for customary and usual household expenses or for reasonable attorneys fees in connection with this action . . ." The orders further provide that " [n]either party shall conceal any property . . ." Practice Book § 25-5(b)(2).
The purpose of the automatic orders in marital dissolution actions is to maintain the status quo of the assets within the marital estate so that they may be distributed by the court at the time of dissolution. See Ferri v. Powell-Ferri, 317 Conn. 223, 233, 116 A.3d 297 (2015); Parrotta v. Parrotta, 119 Conn.App. 472, 483, 988 A.2d 383 (2010). As provided in bold print at the end of Practice Book § 25-5, the " [f]ailure to obey [the automatic] orders may be punishable by contempt of court . . ." Practice Book § 25-5(c).
On the other hand, the purchase of the Las Vegas condo was made as an investment which proved to be a poor investment decision. Having determined that the husband's purchase of this condo was not contumacious but rather, at least to some degree, was justified or made in good faith, the court will not punish him simply because, with the luxury of hindsight, that transaction had proven unprofitable or even unwise. Our Supreme Court has stated that, pursuant to § 46b-81, trial courts have the statutory authority to consider if a spouse has dissipated marital assets when determining the nature and value of property to be assigned to each respective spouse. See, Finan v. Finan, 287 Conn. 491, 500-01, 949 A.2d 468 (2008).
ORDERS
The wife shall receive permanent alimony in the amount of $441 per week, which shall terminate upon the wife's remarriage, cohabitation, or the death of either party.
Each party shall retain their own pensions, motor vehicles, the personal property in their possession and the husband shall maintain the existing life insurance policy so long as there is an alimony obligation. Each party shall provide for their own health insurance.
The husband has already received $25,018 plus $19,300 (cash advance checks) or $44,318.00. Of the remaining funds the wife is presently holding, she shall pay to the defendant's attorney the sum of $20,499.02, pay to her own attorney the sum of $1400.00, pay the 2015 joint tax liability in the approximate amount of $18,000 and pay to the husband the sum of $10,000, over a period of 4 years payable at the rate of $2,500 per year commencing Sept. 1, 2016 and for 3 years thereafter on September 1. This results in the husband receiving $83,817.00 ($25,018 plus $19,300 plus $20,499 plus $9,000 (half tax liability) plus $10,000). Thereafter, each party will pay their own debts on their respective financial affidavits.
The wife shall quitclaim to the husband any and all interest she has in the Las Vegas condominium. Thereafter, the husband shall be responsible, together with his son, for any expenses associated with that property and hold the wife harmless regarding any such expenses.
Dissolution may enter.