Opinion
No. FA 03-0482302S
September 15, 2006
MEMORANDUM OF DECISION
The plaintiff, Roberta Hillinski, has brought this action seeking a dissolution of her twenty-nine year marriage to Theodore Hillinski, custody of their one minor child, and other relief. The parties appeared with counsel for trial of this limited contested matter on two days in February and April of this year. The principal issues are the amount and duration of alimony to be paid by the husband and whether that portion of the husband's pension with the City of North Haven earned before the marriage should be considered in equitable division of property. The parties have agreed to share joint legal custody of their minor child, who will reside primarily with the wife. Following the conclusion of evidence the court requested the parties to submit briefs on the court's authority to consider or award premarital portions of the husband's pension. Both briefs had been filed by July 13th of this year, but the plaintiff then filed a motion to open the evidence to allow the record to include the value of an inheritance expected by the plaintiff from her recently deceased mother. A stipulation between the parties that the expected inheritance was part of the marital estate subject to equitable distribution was filed on this date, and the matter is now ready for decision.
The court has heard and carefully weighed all of the evidence according to the standards required by law. The court has scrutinized and evaluated the credibility and demeanor of the witnesses. The court has carefully considered the parties' arguments, briefs and proposed orders.
The parties were married on December 11, 1976, in East Haven, Connecticut. Both have lived in Connecticut for more than a year prior to the bringing of this action. They have one minor child, Amanda Rose, who was born on August 8, 1989, and will be a senior this fall at Cheshire Academy. The parties have not received any state or municipal financial assistance. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation. All statutory stays having expired, the court has jurisdiction to dissolve the marriage.
The husband has worked for the North Haven Fire Department since March of 1970, in a supervisory position for the last six years. For many years during the marriage he also operated home construction and landscaping businesses, but physical limitations now prevent him from doing so. His base salary is $53,400 per year and he also gets overtime pay averaging approximately $20,000 per year. His average weekly income is $1,424 gross and $1,043 net. The wife worked early in the marriage at Macy's, Blue Cross, and as a real estate broker, and after that helped in the husband's side businesses. For the last three years she has worked as a customer service representative for Agway, where she earns $500 per week gross and $460 net. Based on their respective incomes, the presumptive child support amount is for the husband to pay $185 per week plus 45% of unreimbursed medical expenses and any qualifying childcare expenses.
Both parties testified at trial that in the summer of 2003 Mr. Hillinski began an intimate relationship with a woman living in Montreal and that shortly afterwards he told his wife that he wanted a divorce. They also agreed that for many years they had different bedrooms and that Mr. Hillinski had gone out two to three evenings a week by himself. But they gave significantly different accounts about the other events leading up to this action. According to Ms. Hillinski, the parties continued to enjoy frequent sexual relations even after having different bedrooms and despite Mr. Hillinski spending many evenings away from home. She testified that until he told her he wanted a divorce she thought that they were happily married — although she also testified that she suspected him of having had several affairs before then, including with her former best friend and with at least one other woman. Mr. Hillinski, on the other hand, described the marriage as "a Hell house" and "a continual stressful environment." He testified that the parties never got along and that "no matter what I did it . . . was grounds for argument," which he said usually escalated into screaming matches that he described as "all-consuming" and name-calling, often in front of their daughter or other family members. He denied any affairs before the 2003 relationship and also claimed the parties had been sexually intimate only a few times after taking separate bedrooms in the early 1990s. He said he went out at nights to get away from the stress. The husband's denials of his wife's claims that he had engaged in earlier marital affairs were credible, and the wife's testimony that he had engaged in such was not. The affair that began in 2004 was probably the result of a broken-down marriage, as the court finds credible the husband's accounts of the tension and strife between the parties.
The wife has asked for the marital home, which both parties value at $348,000 and has equity of somewhere between $248,000 and $266,000, and half of the defendant's deferred compensation. The husband has agreed to quitclaim the house to his wife, but only as part of what he called a 50-50 division of marital assets. He proposes to transfer to her his interest in a 401K and IRA that are together worth approximately $75,000, but he wants to retain his Town of North Haven pension free of any claim from her. The defendant submitted a valuation of that pension as worth $612,024.95 as of May 3, 2006, and plaintiff has submitted a stipulation accepting that amount. The value of the portion accrued during the marriage is $505,165.39. The other significant assets are a Chevy Trailblazer worth $15,750 and a sailboat worth $2,500.
After considering the evidence in this case and the statutory criteria for equitable division of property, the court awards each party half the net value of their combined assets. Although the husband asks that the wife receive only 50% of a coverture share of his pension, in view of the length of the marriage and the other facts of this case, the court finds that the entire pension amount should be considered in an equitable division. The law in this state is that property brought by a party to the marriage may be considered marital property or awarded in an equitable division. In Ricciuti v. Ricciuti, 74 Conn.App. 120, 810 A.2d 818 (2002), cert. denied 262 Conn. 946, 815 A.2d 676 (2003), for example, the court upheld a trial court's decision to award a wife portion of a pension earned during 22 years in the military, three of which were before the marriage. The Appellate Court recently reaffirmed that ruling in Tracey v. Tracey, 97 Conn.App. 122 (2006), where the court held that the trial court "was within its discretion, as part of the overall equitable distribution of assets, to divide the defendant's 401(k) equally between the parties even if part of it had accrued prior to the marriage." Here, the pension is the largest asset available to the parties for their financial support in their retirement. The total value of the parties' assets is less than one million dollars, an amount that, while certainly considerable, is not so substantial as to ensure that, when divided between them, the parties will be able to continue to maintain their current standards of living. There are significant disparities in the parties' vocational skills and experience, their present and future earning abilities, and their ability to acquire additional capital assets. In view of all these factors and the proven facts of this case, the court finds, upon consideration of the statutory factors set forth in General Statutes § 46b-81(d), that an equitable division of property should include all assets owned by both parties. Since both parties agree that the wife can retain the marital home and the Trailblazer that she drives, the remainder necessary to award her half can be effectuated though division of the husband's deferred compensation.
By stipulation of the parties, the marital estate subject to equitable distribution includes $19,000 in an inheritance expected by the wife from the estate of her recently deceased mother.
The wife has debt of $30,000 for their daughter's tuition and expenses at Cheshire Academy. Amanda's attendance there has been a source of disagreement between the parties. Originally the husband agreed to pay for private secondary school for Amanda when he believed she was willing to attend a school that would have cost about $10,000 per year, but she ended up attending Cheshire, which will cost $26,000 next year and which the husband testified that he always believed they could never afford. The wife testified that she had agreed to pay the annual difference between the cost of Cheshire Academy and the $10,000 that the husband originally was willing to pay for private school, but that the husband has never made any contributions. Instead, she said, she has used funds from a retirement plan and credit cards to pay for Cheshire, which has cost her $75,000 so far. Although the court finds that the defendant should share equally that debt and the cost for her senior year at Cheshire, in view of the fact that the only significant asset awarded to him is a portion of his pension plan, the court will effectuate that intent by instead ordering him to pay all of Amanda's tuition and other reasonable and customary educational expenses for the present academic year, and leave the wife responsible for the existing debt for prior years.
The wife also asks for alimony for 15 years, declining from $300 per week for 5 years, to $275 for the next five years, and $250 for the final five years. The husband, on the other hand, while acknowledging the wife's need for alimony, proposes to pay $150 per week for 13 years. After leaving Anthem in the mid-1980s, the wife did not work full-time again until three years ago when she obtained the job at Agway. But she has had a real estate license and helped manage the husband's landscaping business in the past. It seems likely that, with time and effort, she can obtain more remunerative employment than her present position. In view of the court's property division here, the other statutory factors for awards of alimony, and the facts of this case, the court awards the wife alimony of $200 per week for 15 years.
The plaintiff has also requested an award of counsel fees in the amount of $10,000. Section 46b-62 of the General Statutes permits awards of counsel fees in family matters, but requires that the court consider the parties' "respective financial abilities and the criteria set forth in section 46b-82." Moreover, the court must take care that its determination of this question does not substantially undermine its other financial orders.
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988). Both parties filed financial affidavits during this proceeding. Based on the evidence offered, and after considering the parties respective financial positions in light of the statutory factors set forth in § 46b-82, as elucidated by the court in Miller v. Miller, the court declines to award counsel fees.
I — ORDERS CT Page 17006
After considering all of the evidence and information presented in light of the statutory criteria for dissolving a marriage and entering orders regarding child support, alimony, equitable distribution of property and division of debt, and award of counsel fees, together with applicable case law, the court hereby enters the following orders:A. Dissolution of marriage
The marriage of the patties, having broken down irretrievably, is hereby dissolved.
B. Parenting orders
The parties will have joint legal custody of the minor child, Amanda, who will live primarily with her mother and with whom her father shall enjoy liberal, reasonable, and flexible parenting time.
C. Financial Orders
1. The husband shall quitclaim his interest in the marital home to the wife, who shall indemnify and hold him harmless thereon. The wife shall refinance the existing debt on the marital home within three years from the date of judgment to remove the defendant from the mortgage; if unable to do so, she shall immediately place the home on the market for sale and accept any reasonable offer within 5 percent of its fair market value. The court retains jurisdiction over the provisions of this paragraph.
2. All of the husband's 401K and IRA shall be transferred to the wife by way of qualified domestic relations order. The plaintiff is further awarded the sum of $123,888 from defendant's present pension with the Town of North Haven, by way of qualified domestic relations order if necessary. The plaintiff shall be responsible for preparing any orders necessary to effectuate the provisions of this paragraph, but the parties shall split equally the cost of preparation. The court retains jurisdiction over the provisions of this paragraph.
3. Personal property and household furnishings and effects from the marital home shall be divided equally. The parties shall first attempt to divide such property by agreement. If the parties are unable to agree on the division, they shall use mediation services from family services. If they still cannot agree, each party shall submit a list of the party in dispute to the court with a brief statement as to why each party claims each such item, and its approximate value, and the court shall award such property. The court retains jurisdiction to resolve any disputes regarding this process.
4. The plaintiff is awarded title and exclusive use of the Chevy Trailblazer, and the husband is awarded full interest in the Saturn motor vehicle and the sailboat.
5. Except as otherwise herein ordered, (i) all other property on each party's financial affidavit is awarded to that party and (ii) each party will be responsible for the debt listed on its financial affidavit and indemnify and hold the other harmless thereon.
6. The husband shall pay alimony of $200 per week for 15 years. Alimony will terminate on death of either party or the wife's remarriage. If the wife cohabits with another, as that term is defined by statute and has been construed by the courts, then alimony may be modified or terminated as the factual circumstances warrant.
7. The husband shall pay child support of $185 per week plus 45 percent of unreimbursed medical and dental expenses and qualifying childcare expenses. Child support will terminate when Amanda turns 18 if she has graduated from high school by then, or at age 19 if she is in high school.
8. The husband will pay for Amanda's tuition, books, and other customary and reasonable academic expenses for her last year of secondary school education at Cheshire Academy. To the extent that the wife has already paid any of these expenses, the husband shall promptly reimburse her for any payments she has made.
9. The parties shall alternate the dependency exemption for Amanda for so long as legally entitled to do so, the husband claiming her for the year 2006.
10. The parties shall file joint tax returns for the years 2003 through 2005 and share any refunds, liabilities, and fines or penalties equally.
11. The court will retain jurisdiction over post-secondary educational support for the minor child.
12. The defendant shall keep the minor child on his health insurance so long as available to him at a reasonable cost through his employment. He will also cooperate with the defendant if she wants to obtain health insurance for herself under COBRA through his employer, but she shall be fully responsible for all costs of her own insurance.
13. The husband shall maintain the $50,000 in life insurance listed on his financial affidavit, and name his wife as the exclusive beneficiary for as long as he has a child support or alimony obligation.