Opinion
No. FA01-0122163S
October 9, 2003
MEMORANDUM OF DECISION
The complaint for this limited contested dissolution of marriage action is dated March 1, 2001. The plaintiff and the defendant were married on June 30, 1979 in New Canaan, Connecticut. There are two children issue of the marriage; Jonathan Tyler Hvizdak born May 6, 1987, a minor, and Meredith Ann Hvizdak born April 25, 1984. No other children have been born to the plaintiff wife since the date of the marriage.
Neither party has been the recipient of state assistance. The parties separated in April 2001. The marriage between the plaintiff and the defendant has broken down irretrievably. The plaintiff wife is 49 years of age and in good health. She has a bachelor's degree and has attained a fifth year certificate. She has worked as a schoolteacher since 1976 and presently she is employed at the Griswold Intermediate School. Her gross weekly wage is approximately $1,100 and her net weekly wage is $795. The plaintiff has a 2000 Dodge Caravan that has no equity and a 1993 Dodge Caravan that has no value. She also has two checking accounts and two savings accounts; all of which contain a total of $670. She has two life insurance policies that have a total face amount of $160,000 and total cash value of $8,302. The plaintiff has approximately $15,600 in liabilities, mostly of credit card debt, and weekly expenses of $1,022.
The plaintiff will not be eligible to receive Social Security benefits because she does not make contributions to that system. She does make contributions to the Connecticut Teachers' Retirement System, which is a contributory-defined benefit plan providing pension benefits. At the present time, the plaintiff is eligible to receive a maximum monthly benefit of $2,378 when she is 60 years old. The parties agree that the present value of this pension benefit is $108,948.
The plaintiff is the beneficiary of two trusts that were established by her grandmother, Catherine Davis Gauss, which will be discussed later. During the last twenty-four years the plaintiff has received approximately $380,000 from family sources, including trust distributions (Plaintiff's Exhibit 1). This money was used by the parties and none remains. Most of this money came from inheritances and the sale of property, events that are not likely to recur. The court finds that these payments of family money do not establish a pattern of income that should be considered in formulating an alimony award. There have been no trust distributions since this action started.
The defendant husband is 51, in good health, and he has a high school education. He has been employed for many years as a technical writer. He was employed at Raytheon for six years until he was laid off in 2002. When he left Raytheon, he was earning $45,000 per year. Prior to working at Raytheon, the defendant was employed at General Dynamics.
Presently the defendant is unemployed. He has been living in Ohio since June 2002, where he is assisting his parents in their family business. The defendant states he is living on loans from his parents, which are advanced at the rate of $250 per week. The court does not find this credible. There was not sufficient evidence presented to establish that the defendant has a diminished earning capacity. Based upon his long earning history as a technical writer, the court finds he has an earning capacity of $45,000 per year. Excluding the loan balance to his parents, the defendant has liabilities of $18,000 and his expenses are $200 per week.
During his employment at General Dynamics the defendant contributed to a Stock Savings Investment Plan (SSIP), which now has a value of $172,517. From his service at General Dynamics, the defendant is entitled to receive two pensions; one will pay him $22 per month, the other $371 per month. Both pensions begin when the defendant turns 65. The parties agree that the present value of the pensions is $10,106.64. The defendant also has an SSIP at Raytheon valued at $15,493. The court finds the parties utilized the plaintiff's salary to maximize the contributions the defendant could make to his SSIP(s).
The marital home located at 24 Tyler Terrace was built by the parties in 1986. The plaintiff's appraiser, James Blair, prepared an appraisal which indicated a value for the property of $195,000. He acknowledged, while testifying, that there was a mistake in the comparable sales data. He testified that the property has a value of $197,500. Mr. Blair believed that the outbuildings on the property had no value. He also found the property was in need of repair and he applied a functional depreciation adjustment of $30,000 to his comparable sales.
The defendant had a property appraisal performed by Mr. Delair. Mr. Delair's appraisal, which was performed in September 2002, indicated a value for the property of $240,000. Considering the passage of time and an appreciating real estate market, Mr. Delair testified that the property had a present value of $252,000. Mr. Delair included the value of the outbuildings in his appraisal; however, he was not able to inspect the interior of the property.
When valuing property, the court may accept or reject the testimony of an expert witness in whole or in part. Polomski v. Poiomski, 24 Conn. App. 491 (1991). The court does not accept Mr. Blair's testimony that the outbuildings have no value. The court finds that Mr. Delair's appraisal should be adjusted to reflect the cost of repairs. Consequently, Mr. Delair's appraised value should be reduced by $30,000 to reflect the functional depreciation determined by Mr. Blair. The court finds the value of the marital home to be $222,000. The property is encumbered by a mortgage with a balance of $100,719; thus, there is $121,281 in equity.
Considering all of the evidence on the matter, the court declines to assess fault. Both parties are equally responsible for the breakdown of this marriage.
It is in the best interest of the minor child for the parties to share joint legal custody. The primary residence of the child shall be with the plaintiff mother and the defendant father is to have reasonable rights of visitation.
Based upon the incomes shown on the parties' financial affidavits, the Child Support Guidelines indicate a recommended support order of $49 per week. The court finds this amount inappropriate and inequitable, based upon the defendant father's earning capacity as found. The defendant is to pay child support in the amount of $116 per week. The parties are to share in unreimbursed medical expenses in the following percentages: plaintiff mother, 64%; defendant father, 36%.
A pendente lite child support order in the amount of $169 per week was entered on June 4, 2001. There is an arrearage on this order, however the parties cannot agree on the amount. The defendant maintains that this order was modified during a trial before Judge Trial Referee Vasington which ended in a mistrial. The court has reviewed a transcript, provided by the defendant, of a portion of the proceedings before Judge Trial Referee Vasington which occurred on September 24, 2002.
The defendant paid $169 per week until June 15, 2002 when the oldest child graduated from high school. He then unilaterally reduced his child support payment to $72 per week. The defendant has not paid any child support since February 1, 2003, which is when his unemployment compensation ran out. The defendant did not file a motion to modify when the oldest child graduated from high school because this case was scheduled for trial in early July 2002. The case did not commence trial until September 24, 2002. At the trial before Judge Trial Referee Vasington, the plaintiff's attorney cross examined the defendant about the child support arrearage. It is apparent from the transcript that Judge Trial Referee Vasington considered the graduation of the oldest child to be an event which would affect child support. It is equally apparent that Judge Trial Referee Vasington did not enter an order modifying the child. Ultimately, Judge Vasington declared a mistrial.
Regardless of what a judge indicates during a trial, a judgment is not rendered until it is officially announced in open court or in a writing filed with the clerk. Divito v. Divito, 77 Conn. App. 124 (2003). The file for this case does not contain any writing evidencing a modification. An order of the court must be obeyed until it has been modified. Eldridge v. Eldridge, 244 Conn. 523 (1998).
The defendant apparently recognized that the child support order was never modified and he filed a motion to modify on April 23, 2003. This motion had not been acted on as of the date of this trial. It is appropriate to consider the motion an issue to be resolved by these proceedings. The order of child support determined herein is retroactive to the date of the motion to modify, April 23, 2003. The defendant's child support arrearage is calculated as follows:
June 15, 2002 — February 1, 2003 33 weeks @ $169/week = $5,577
Defendant paid 33 weeks @ $ 72/week = 2,376
Arrearage as of February 1, 2003 3,201
February 1, 2003 — April 26, 2003 11 weeks @ $169 per week
(Nothing paid by defendant during this time) 1,859
April 26, 2003 — October 4, 2003 22 weeks @ $116 per week
(Nothing paid by defendant during this time) 2,552
Total Child Support Arrearage $7,612
The court finds the defendant owes the plaintiff the sum of $382.90 for unreimbursed medical expenses for the minor child. The defendant also owes the plaintiff the sum of $980 pursuant to a pendente lite order for contribution to a joint debt.
The court has carefully considered the provisions of General Statutes § 46b-82 regarding alimony. The plaintiff wife does not seek alimony. The defendant husband requests an award of periodic alimony in the amount of $100 per week for a period of ten years. He also seeks alimony in the form of a share of any amounts that the plaintiff may receive from her grandmother's trusts.
The court finds that neither party is in need of continued support from the other. The respective income and earning capacity of the parties do not justify an award of alimony. Although the amount of the plaintiff's income is larger, her expenses are higher. For reasons stated below, the plaintiff's trust interests cannot serve as a basis for an award of alimony. Consequently, an alimony award to either party is not warranted.
The court has considered the provisions of § 46b-81 regarding the assignment of property. Before proceeding to an assignment of property, the court must determine the nature of plaintiff's trust interests and their effect upon the marital estate. The plaintiff has an interest in two separate trusts established by her grandmother. Attorney P. Michael Lahan testified as an expert witness for the defendant regarding the trusts and he prepared a memorandum (Plaintiff's Exhibit 3). From a review of the trust documents, and Attorney Lahan's testimony and memorandum, the court reaches the following conclusions. The two trusts are in the nature of "spendthrift trusts," since distribution of income and principal to the plaintiff is in the sole discretion of the corporate trustee. Furthermore, in both trusts the plaintiff's father has the ability, by way of a limited power of appointment, to distribute the principal of both trusts to his wife. For this reason, the plaintiff's interests are subject to complete divestment. At best, the trust instruments create an expectancy.
Although the defendant's proposed order seeking a contingent future share of any disbursements from the plaintiff's trusts is nominated alimony, the court will also treat the proposed order as one seeking a property assignment of a portion of any future disbursements. The case of Rubin v. Rubin, 204 Conn. 224 (1987), a factually similar case, is dispositive of the defendant's claims. In Rubin, "the trial court ordered that the plaintiff pay to the defendant one third of the net estate that he may receive from either the trust created by his mother and from her by way of a testamentary gift or other form of inheritance." Id. 227. The Rubin court noted the holding of Krause v. Krause, 174 Conn. 361 (1978), which prohibited the consideration of evidence of an expectancy such as a potential inheritance. Id. 230. In the instant case, the fact that the plaintiff's interest in both trusts is subject to complete divestment renders the interests mere expectancies. The defendant makes much of the fact that the plaintiff's interests are vested. He overlooks the testimony from his expert that the trust interests, although vested, are subject to complete divestment if the plaintiff's father exercises his power of appointment to someone other than the plaintiff. Although this may not be likely, it is no less possible, and this possibility reduces the plaintiff's interests to being only expectancies.
The defendant tacitly acknowledges the uncertainty of the plaintiff's interests and thus he proposes that he benefit only when, and if the plaintiff actually receives a disbursement from the trusts. Under the holding of Rubin, a contingent award of alimony and/or a contingent assignment of property related to an expectancy is not permitted.
The cases cited by the defendant do not persuade this court to disregard Rubin. The case of Anderson v. Anderson, 191 Conn. 46 (1983), was discussed by the Rubin court. This discussion was in the context of past gratuities serving as the basis of a periodic alimony award. As stated earlier, the court does not find that the defendant is in need of continued support. Even if he needed continued support, the court has found that the payments the plaintiff has received from her family do not support an award of alimony.
The case of Bass v. Bass, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA96-0154349, 32 Conn. L. Rptr. 666 (August 6, 2002), contains an order similar to the one proposed by the defendant; however, the case is distinguishable. In Bass, the plaintiff husband filed a postjudgment motion to modify his alimony contained in a separation agreement. The plaintiff's health had deteriorated and his salary was now one fifth of his previous salary. The court noted that the plaintiff had the power to request distributions from his trust but he had never made such a request. The court considered the possible future distributions as a source of payment of the plaintiff's alimony obligation. In this case, the court has concluded that alimony to the defendant is not warranted.
In the case of Carlisle v. Carlisle, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA93-0132653, 12 Conn. L. Rptr. 535 (October 21, 1994), the issue was whether an irrevocable vested remainder interest, conditioned on survival, was subject to the court's consideration in determining property and alimony awards. In that case, the interest was only conditioned on survival; here, the plaintiff's interest is conditioned upon her survival and upon the favorable exercise of her father's power of appointment. The plaintiff's interest is more like the one in Rubin, subject to revocation, than the interest in Carlisle, subject only to survivorship. Tremaine v. Tremaine, 235 Conn. 45 (1995), also does not help the defendant, since here the plaintiff does not have actual control of the trusts.
Before assigning the marital estate, the court must first establish the value of the individual assets, including the retirement benefits the parties will receive. As noted earlier, the plaintiff is not covered by Social Security benefits because she contributes to the Teachers' Retirement System. The defendant will be entitled to receive Social Security benefits in addition to his two pensions. It would be inequitable to apportion the plaintiff's retirement benefits while ignoring the defendant's Social Security benefits. It is proper to consider the defendant's Social Security benefits as a fixed source of income and it is equitable and appropriate in this case to consider these benefits as offsetting the plaintiff's teachers' retirement benefits. See Hoffman v. Hoffman, Superior Court, judicial district of Hartford at Hartford, Docket No. FA98-0718756, (July 12, 2000).
The amount that the plaintiff will receive from her pension, and the amounts that the defendant will receive from his two pensions and from Social Security were stipulated to by the parties. The court concludes the present value method of valuing the retirement benefits is appropriate in this case because there are sufficient assets available to offset the present value of the retirement benefits. See Krafick v. Krafick, 234 Conn. 783, 800 (1995). The court requested the present value of all the retirement benefits and the parties selected an accountant who established the values stated earlier. (Plaintiff's Exhibit 5.) The accountant also determined that the present value of the defendant's Social Security benefits is $38,066. When the value of the plaintiff's teachers' retirement benefit of $108,948.67 is offset by the defendant's Social Security benefit of $38,066, the net present value of the plaintiff's teachers' retirement benefit is $70,882.67.
Both parties worked throughout this 24-year marriage and the court concludes they should each receive approximately one half of the marital assets. It is logical and reasonable that the parties receive assets which are presently titled in their respective names. It is also reasonable for the plaintiff to receive the equity in the marital home since the defendant resides in Ohio and the plaintiff provides the primary residence for the minor child. The marital assets are assigned to the parties as follows.
To the Plaintiff Wife:
Present net value of her teacher's retirement $ 70,882
Equity in the marital home 121,281
Cash value of her life insurance policies 8,302
Total $200,465
To the Defendant Husband:
Value of his General Dynamics SSIP $172,517.00
Value of his Raytheon SSIP 15,493.00
Present value of his General Dynamics pensions 10,106.64
Total $198,116.64
Although the parties disagree as to the value of the personal property in the marital home, the court finds the plaintiff's estimate of value, $5,000, to be credible. The plaintiff notes that she alone has paid the mortgage on the marital home during the pendency on this action and that the principal balance has been reduced by approximately $15,000. This reduction increased the equity in the home which in turn increased the amount of the defendant's share of the marital estate. The plaintiff is to receive the bulk of the personal property as well as retain the $669 in her bank accounts.
The parties' oldest child is a college sophomore. The younger child is a junior in high school and he is taking college prep courses. It is appropriate for the court to consider an educational support order pursuant to P.A. 02-128, now § 46b-56c. The defendant claims that the court does not have jurisdiction since the initial order of child support in this case entered prior to the effective date of the act, October 1, 2002. The act provided that "the provisions of this section shall apply only in cases when the initial order for parental support of the child is entered on or after the effective date of this section." The court agrees with the thorough analysis and sound reasoning of Judge Cosgrove in the case of Wasserman v. Wasserman, Superior Court, judicial district of Windham, Docket No. FA02-0067715, 34 Conn. L. Rptr. 498 (April 9, 2003), and concludes that there is a distinction between a child support order, and parental support in the nature of an educational support order. Since they are not the same, there was no initial order for parental support issued prior to the effective date of P.A. 02-128. The court has jurisdiction to consider the matter.
The court finds as a matter of fact that it is more likely than not the parents would have provided support to their children for higher education if this family were intact. Both children have bank accounts that have been established for their college education. The court also recognizes the possibility the children will receive contributions for college education expenses from other sources including gifts, grants and loans. Both parties have the ability to pay any balance that remains and they should pay equally.
The court has considered the provisions of § 46b-62 regarding attorney fees. Each party is to be responsible for payment of their own counsel fees.
ORDERS
1. The marriage is dissolved on the grounds of irretrievable breakdown.
2. The parties are to have joint legal custody of the minor child. The primary residence of the minor child shall be with the plaintiff mother and the defendant father shall have reasonable rights of visitation.
3. The defendant father is to pay child support in the amount of $116 per week. The parties shall share any unreimbursed medical expenses in the following percentages: plaintiff mother, 64%; defendant father, 36%. Plaintiff mother shall provide health insurance for the minor child.
4. The plaintiff mother may claim the minor child as a dependent exemption. Furthermore, the plaintiff mother may claim the oldest child as a tax dependent for as long as she is entitled to under the law.
5. The plaintiff shall cooperate to extend COBRA health and dental insurance benefits to the defendant. The cost of the premiums for said coverage shall be paid by the defendant.
6. Neither party is to receive alimony.
7. The defendant shall quitclaim his interest in the marital home located at 24 Tyler Terrace, Jewett City, Connecticut to the plaintiff within 30 days from the date of judgment. The plaintiff shall be responsible for and hold the defendant harmless for all liabilities, including the mortgage and taxes, in connection with the marital home.
8. The plaintiff shall retain the following assets shown on her financial affidavit: cash value of the life insurance policies, bank accounts and two Dodge Caravans. The plaintiff is to also retain her teachers' retirement free from any claim from the defendant.
9. The defendant shall retain his two General Dynamics pensions. Except as provided for herein, the defendant shall also retain his General Dynamics SSIP and his Raytheon SSIP.
10. The defendant shall pay to the plaintiff the sum of $8,947 within 30 days of the date of judgment. This sum is comprised of the following: pendente lite child support arrearage, $7,612, unreimbursed medical expenses for the minor child, $382.90, arrearage on pendente lite order for contribution of joint debt, $980. If this amount is not paid from other sources, the defendant is ordered to liquidate a portion of, or borrow from, either or both of his SSIP(s) in order to pay said $8,947 within 30 days of the date of judgment.
11. The following order for educational support is issued pursuant to § 46b-56c for each child. The parties are to equally pay any balance of the cost of college education for the child after application of any educational accounts established for the benefit of the child, financial aid from the college or university, scholarships, and gifts from family members, including any distributions the child may receive from any trusts. This order for educational support is for any necessary educational expenses as defined by § 46b-56c(f) and includes books and medical insurance. The amount of the remaining balance, if any, to be paid equally by the parents as educational support shall not exceed the amount charged by the University of Connecticut for a full-time in-state student at the time the child for whom the educational support is paid matriculates.
12. Each party is to be responsible for and shall hold the other party harmless from the liabilities shown on their respective financial affidavits.
13. Each party is to be responsible for payment of their respective counsel fees.
14. The defendant shall be entitled to possession of his hand and power woodworking tools and his hand and power mechanics tools, as well as his books. The defendant is to remove the tools and books from the marital residence within 60 days of the date of judgment. The plaintiff shall retain the balance of the personal property at the marital residence.
Domnarski, J.