Opinion
No. FA-01-0067046S
January 6, 2004
MEMORANDUM OF DECISION
This dissolution of marriage action seeks the termination of the parties' marriage. The action was commenced by complaint dated December 6, 2001, after the plaintiff stopped residing with the defendant in May 2001.
The parties, represented by counsel, appeared at trial on November 25 and 26, 2003. The court heard evidence from the parties and received into evidence ten exhibits offered by the plaintiff and six exhibits offered by the defendant. All of the evidence was considered by the court, as were the provisions of General Statutes §§ 46b-62, 46b-81 and 46b-82, and the other relevant statutes providing for dissolution of marriage.
There are no children born of the marriage. This is a second marriage for both parties. The couple met in the early 1980s when the plaintiff was working as a dental assistant for the defendant. After each of them was divorced from their spouses, they began to reside together and married in June 1992. The plaintiff continued to be employed as a dental hygienist for the next seven years in another dental practice, and in 1999 began to collect social security disability. She has several degrees, one in dental hygiene and another in business with a concentration in travel agency training. She is age 56.
The defendant worked as a dentist his entire professional life until he began collecting disability due to arthritis in 1995 at the age of 62. He is now 70 years old, and collects social security retirement income as well as income from a sand and gravel business located on his property.
The plaintiff claims to suffer from a number of ailments, but other than her therapist who testified as to her mental health, the plaintiff offered no medical expert testimony regarding her other illnesses or particularly her inability to have any type of employment. According to the therapist, the plaintiff may be able to hold small jobs. During the marriage her depression and psychological problems increased, and the defendant was unable or unwilling to provide the plaintiff with the emotional support she needed. Also, the defendant consumed alcohol, and that coupled with an issue with anger, led to several arguments.
At the time of the marriage, the plaintiff had a "nest egg" of approximately $10,000.00 that she put into stocks and bonds. Although she testified at trial that she had approximately $45,000.00 to $50,000.00 at the time of their marriage, in reviewing the income tax statement for the year 1992, her only interest income was on her account at the Southbridge Bank of $446.00. If this account paid only 4 percent interest, this would only be approximately $11,000.00 in deposits. She transferred this money into an investment account and, like so many others, benefitted from the strong stock market and at one time she testified she had probably in excess of $340,000.00 in her investment account. She, like so many others, also unfortunately suffered as a result of the significant declines in the stock market. She currently has approximately $95,000.00 in her Paine Webber stock account. There was no evidence of any contributions to this account made during the time of the marriage. She owned no other significant assets when she entered the marriage.
This is the amount that she gave during her deposition on October 7, 2003.
The plaintiff also holds a one-third interest in property in Southbridge, Massachusetts, with her two siblings, and with her mother holding a life use in the property. The only evidence of the value of her interest in this property was the testimony of the plaintiff and which she listed on her financial affidavit as $30,000.00.
The defendant at the time of marriage owned real estate consisting of approximately 42 acres with buildings consisting of a Victorian house with apartments, farm buildings converted into apartments, two office units and a large barn with upper and lower level and a two-car detached garage. In 1993, the defendant gifted his daughter 5 acres and all of the buildings because he was unable to manage the property, and it was always his intention that she would inherit this property when he died. The parties had begun construction of a house on the property owned by the defendant and this soon became a source of disagreement between the parties due to the construction exceeding the budget, a common problem with most new construction. The defendant readily admits that this was largely his fault since the plaintiff was much more conservative with the spending of their money.
The defendant also sold a parcel of land consisting of five acres to an adjoining land owner for $95,000.00 and he used most of that money to pay down the mortgage balance on the house that had been constructed.
At the time of construction, the original amount of the mortgage was $300,000.00 and now the balance is approximately $60,000.00.
Presently the defendant's income consists of money he withdraws from an IRA account which, according to the evidence, if he continues to withdraw at the present rate to cover his expenses, will be depleted prior to his life expectancy age. His main source of income is from a sand and gravel business which is located on the premarital property, but that too is due to run out in the very near future.
The parties maintained a joint checking account during the term of the marriage which was funded by the proceeds from the sale of the defendant's dental practice as well as his disability income and income from the sand and gravel business. The plaintiff made contributions to that account, but not regularly, and it is not clear how much she contributed or with what frequency. She also continued to use a second account which she had prior to the marriage called her "tack-up" account. The defendant was not listed as a holder of that account. Although the plaintiff indicated that he in fact had authority to sign checks, there was no evidence he did so.
Neither party is solely responsible for the breakdown of this marriage. Although the plaintiff claims that she was afraid of the defendant's temper, he was never physically abusive. In fact, after the plaintiff separated from the defendant in May 2001, she invited him on vacation for two consecutive years where they enjoyed each other's company and engaged in sexual relations. The defendant may have abused alcohol which fueled his anger and temper but it was his inability to fully understand the depth of the plaintiff's problems that caused his frustration. Clearly he loved the plaintiff and was having a difficult time coping with her myriad of psychological and physical ailments, whether real or imagined.
Since the filing of the dissolution action, the defendant has sought inpatient treatment for acute depression. From that treatment it was determined that he probably should no longer drink alcohol and according to his own testimony, he has heeded that advice.
While apportioning the parties' respective shares to the estates as required by General Statutes § 46b-81, it is necessary to consider the economic values of the parties' assets. The court need not, however, assign specific values to each asset. Burns v. Burns, 41 Conn. App. 716, 677 A.2d 971 (1996); Puris v. Puris, 30 Conn. App. 443, 620 A.2d 829 (1993). The trial court has the right to accept so much of the testimony as it finds applicable. Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1973). The court is entitled to arrive at its own conclusion of value by weighing the opinions of the appraiser, the claims of the parties, and its own general knowledge of the elements going to establish value. Id., at 274; Bornemann v. Bornemann, 245 Conn. 508, 532, 752 A.2d 978 (1998). The real estate owned by the defendant was acquired before the marriage. The acreage together with the house which the parties had constructed has a value of $500,000.00. Although the house was constructed during the marriage, the defendant made substantially all the contributions toward the construction and acquisition of the house and the plaintiff did not make a satisfactory showing that she contributed to the improvements of the property.
Unfortunately, this is a case where the plaintiff subscribes to the adage: what's mine is mine and what's his is ours. She produced canceled checks in excess of $183,000.00 detailing her contributions to the day-to-day expenses of the marriage during the nine years they resided together. Applying her reasoning that the parties should get back everything he or she put into the marriage, she would get nothing if the defendant was first repaid his contributions. This would not be an equitable result.
The plaintiff was unwilling to accept any responsibility for the breakdown of the marriage including her failure to understand the struggle the defendant had in dealing with her various medical problems or her own ambivalence about him and the marriage. She was emphatic that she is a victim in this matter, but quickly added, also a survivor. While the court can be sympathetic toward a person who suffers from a mental illness, there was not sufficient evidence in this case that she was or will not be employable again. The evidence was that her mental illness is treatable through various medications and that she was improving. Considering the defendant's age and ability to earn a living as well as his ongoing alimony obligation to his first wife, the court concludes that each shall be responsible for their own ongoing future support.
According to her therapist, the plaintiff's therapy sessions were much less frequent. Her medications are monitored monthly through a medication manager, according to the plaintiff's own testimony.
The court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes §§ 46b-81, 46b-82, hereby makes the following findings:
1. The court has jurisdiction and the matter has been pending for 90 days.
2. The allegations of the complaint are proved and true, including the allegation that the marriage has broken down irretrievably.
3. Throughout the marriage, until their separation, the defendant made significant contributions to the acquisition, maintenance and preservation of the family assets. The court is required to consider the contribution of each of the parties in the acquisition, preservation and appreciation in value of their respective shares. General Statutes § 46b-81(c). The real estate in Pomfret Center owned by the defendant is a premarital asset. However, the plaintiff assisted with the construction of the house on the property and should share in some of the appreciation. The four timeshares owned by the parties were purchased during the life of the marriage with joint marital funds. The court accepts the valuation of this property at $9,000.00, the amount given by the plaintiff.
4. Under all the facts and circumstances of this case, considering the age of the parties, their education and work experience, the ownership of property, as well as the length of the marriage, a lump sum award of alimony to the plaintiff is equitable and appropriate. The court has considered the health of the plaintiff as one of the criteria in making this award. McGuinness v. McGuinness, 185 Conn. 7, 10-11, 440 A.2d 804 (1984); Costa v. Costa, 57 Conn. App. 165, 173-74, 752 A.2d 1106 (2000). Although the plaintiff is presently receiving social security disability, there was no credible evidence to indicate her inability to obtain any type of employment either at present or in the future. Once she put her health in issue, it is incumbent on her to offer pertinent evidence to support her position. See, Tevolini v. Tevolini, 66 Conn. App. 16, 27, 783 A.2d 1157 (2001).
The plaintiff is presently living with her mother at a modest living cost in a house which she is part owner.
5. An award of attorneys fees in a family matter is within the discretion of the court based upon a review of the financial ability of each party, and upon a finding by the court that there are ample liquid assets with which to make the payment. Koizim v. Koizim, 181 Conn. 492, 500-01, 435 A.2d 1030 (1980); General Statutes § 46b-62. In light of each of the parties' liquid assets that each will retain, each party has ample liquid assets to pay their own attorneys fees without any contribution from either. Further, there was no credible evidence to indicate that either party was deliberate or contributed to the delay in this matter coming before the court for final hearing.
ORDER IT IS HEREBY ORDERED THAT:
1. The marriage of the parties is hereby dissolved, and they are each hereby declared to be single and unmarried.
2. The defendant shall pay to the plaintiff a lump sum alimony payment of $75,000.00, which shall be paid upon the earlier of the refinancing provided for in paragraph 3 of these orders or the sale of a portion or all of the property at 25 Searles Road, Pomfret Center, Connecticut.
3. The defendant shall retain the marital home located at 25 Searles Road, Pomfret Center, CT. Within ninety days of these orders, the defendant shall refinance the mortgage and note on said property to remove the plaintiff's name from the indebtedness to Putnam Savings Bank. The plaintiff shall retain her interest at 88 Clover Street, Southbridge, Massachusetts, free and clear of any claim by the defendant.
4. Each party shall be entitled to keep their respective savings, checking, money market, retirement, investment accounts free and clear of any claims by the other.
5. Each party shall be responsible for their own medical coverage and copays.
6. The plaintiff shall retain all four (4) vacation time shares and she shall provide all necessary documentation for the defendant to transfer said property. He shall execute the transfer documents within ten days of presentment.
7. The defendant shall retain the Dodge Ram, with the plaintiff transferring title and registration within five (5) days of the date of these orders. The plaintiff shall be entitled to keep the automobile which she is currently driving free and clear of any claims by the defendant. Each shall be responsible for all costs and expenses associated with the use, operation and maintenance of the vehicles each retains.
8. Each party shall continue to own and hold free of any claim of the other of any and all personal property tangible and intangible except as expressly provided herein. The defendant shall give to the plaintiff the oak end table/magazine rack, antique platform rocker, wood framed glass shelving units, 36 inch television, and upholstered oak bench within thirty days.
9. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
SO ORDERED.
SWIENTON, JUDGE.