Opinion
No. FA-06-4006143 S
June 12, 2008
MEMORANDUM OF DECISION
The plaintiff who was a resident of South Windsor, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on February 20, 2008. At the time, the defendant was a resident of South Windsor, Connecticut.
The court finds that it has jurisdiction and that all statutory stays have expired.
A contested trial was held before the undersigned on June 11, 2008. Both parties appeared at trial. The wife was represented by counsel and the husband represented himself.
The court has fully considered the criteria of General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments 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 whose maiden name was Kidd were married on November 2, 1991 in Hartford, Connecticut.
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 have been two children born to the wife since the date of the marriage namely John E. Taylor born June 26, 1992 and Jeremiah Taylor born March 8, 2001. No other children have been born to the wife since the date of the marriage.
5. The parties have received assistance from the state of Connecticut
6. The only assets of any substance is the marital home located in South Windsor and three vehicles with little or no value.
7. Prior to the birth of her two children, the wife was gainfully employed outside of the home and earned approximately $35,000 per year.
8. During the last years of the marriage, the parties owned and operated a lucrative business known as J N Petroleum, LLC. The husband would service the equipment at gasoline stations and the wife maintained the books and records. In 2006 the family earned nearly $300,000 after expenses.
9. The parties separated in September 2006 and reconciled in November 2007 and separated again February 1, 2008.
10. Each time the husband vacated the marital residence he did so abruptly and did not communicate with his children the details or circumstances of his leaving. The husband has not spoken to or seen his children since February 2008. The husband has refused to support his family and there presently exists a child support and alimony arrearage of $10,200. During the separations, the wife has been forced to the brink of home foreclosure, is receiving public assistance, is in bankruptcy and has been sued by creditors of the family.
11. The husband has been subject of motions for contempt, capias orders, restraining orders, and motions to comply with production requests. He has failed to appear for numerous pendente lite court proceedings. The court finds that his conduct has made this litigation more costly and contentious than it should have otherwise been. As recently as June 10, 2008, he was ordered in open court to produce long over due documents for the plaintiff's attorney by 4 p.m. that date which he failed to accomplish.
12. There presently exists as marital assets a home which the court finds to be valued at $240,000 secured by a mortgage in the amount of $145,000 and a $36,000 state of Connecticut lien, the wife's Lincoln Navigator of uncertain value, a 2001 Cadillac Sedan Deville which is inoperable and the husband's truck which is in danger of repossession.
13. The wife's unsecured debt includes $67,686, $21,000 of which is expected to be discharged in her bankruptcy.
14. The husband acknowledged that he has engaged in an extramarital affair with a woman who he has used to hide some of his income and assets. He has literally abandoned his wife, home and children both emotionally and financially. The cause of the dissolution is found to be primarily his.
15. The parties stipulated and agreed that the defendant shall pay the plaintiff child support in the amount of $300 per week and that there is an outstanding arrearage of $10,200 in accrued unallocated alimony and support though this date, that the defendant would pay 50% of any extracurricular activities up to an annual sum of $1,000 and 50% of any work-related day care or day camp expenses for the minor child Jeremiah, that the defendant may claim the minor child John as an exemption for income tax purposes and that the plaintiff would claimed Jeremiah as an exemption for income tax purposes and when there is only one child to claim, the defendant would take the odd years and the plaintiff would take the even years but that the ability for the defendant to take such dependency exemptions is conditioned upon his being current on all of his financial obligations to the plaintiff as of December 31 of that year, that the court would retain continuing jurisdiction regarding post-majority educational support, that the defendant would use his best efforts to obtain as much life insurance on his life as he can obtain for a premium of $600 per year naming the plaintiff as beneficiary and that he would execute an authorization to the insurance company and provide it to the plaintiff authorizing her to verify at her option from time to time that the insurance is in force, that the plaintiff would retain the 2003 Navigator and that the defendant would retain the 2001 Chevrolet truck with each of them responsible for the costs, expenses and loans associated therewith, that the defendant would pay $5,000 toward the legal fees of the plaintiff and that for so long as the plaintiff in the minor children are receiving medical insurance through Husky, the defendant shall reimburse the state of Connecticut the sum of $27 per child per week for such insurance. Both parties agreed to maintain medical insurance for the benefit of the minor children if it is available to them through their employment at a reasonable cost, reasonable cost being defined as a figure not greater than 7 1/2 percent of either party's net income.
16. The husband has intentionally decreased his earnings, claiming to earn only $500 per week doing odd jobs. He was able to earn great sums of money during the course of the marriage as well as during the reconciliation period with his wife. The court finds his testimony that the economy has caused his loss of business opportunities to be not credible.
17. The wife is 38 years old and the husband is 36 years old and both are in good health.
18. The wife has a bachelor's degree in psychology and presently works for the town of South Windsor earning $14 per hour. She believes that she will be capable of earning $30,000-$35,000 per year soon. The husband believes that the wife's earning capacity is higher.
19. The court finds that the husband has an earning capacity of $100,000 per year given his history of earnings.
20. The parties do not communicate and co-parenting would be impossible. The husband's claims that the wife has prevented him from visiting with, communicating with or even attending his son's high school basketball games are not credible. He coached his son's basketball teams for three years and is certainly capable of finding out when a public high school holds basketball games and other scholastic and athletic events. He had filed no motions seeking access to his children.
21. It would be in the best interest of the children to award sole custody to the wife.
22. The only real asset of the parties is the marital home. The husband has demonstrated during the pendency of this case that he will intentionally and willfully violate court orders to pay child support and alimony and deliberately hide assets or minimize his earnings. He is found to be in contempt of the pendente lite orders and an arrearage of unallocated child support and alimony in the amount of $10,200 is found to exist. For those reasons, the wife should be awarded the home in its entirety.
LEGAL DISCUSSION
"The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." Gervais v. Gervais, 91 Conn.App. 840, 841, cert. denied CT Page 9895 276 Conn. 919 (2005).
In any custody order, the court is bound by what is in the best interests of the child. Simons v. Simons, 172 Conn. 341 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260 (1953), Connecticut general statutes section 46b-56. The court must also give consideration to the preference of a child or children if that child is of sufficient age to be capable of forming an intelligent decision. The rights, wishes and desires of the parents are also a factor to be taken into account. Both considerations, however, must be subordinated to the best interest of the child. Ridgeway v. Ridgeway, 180 Conn. 533, 541 (1980).
Regarding the distribution of property, Connecticut General Statutes § 46b-81 states:
In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.
"A court may accept or reject such evaluations in whole or in part and ascribe its own valuations to real estate . . . The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder. Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 430-31 (1987)." Martin v. Martin, 90 Conn.App. 145, 150 (2007).
Regarding the awarding of alimony, Connecticut General Statutes sec 46b-82 states:
At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.
"It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income . . . Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health." Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007), Eliah v. Eliah, 99 Conn.App. 829, 833 (2007). "It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations . . ." Weinstein v. Weinstein, 280 Conn. 764, 772 (2007). Moreover, "lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate." Carasso v. Carasso, 80 Conn.App. 299, 304 (2003), cert. denied, 267 Conn. 913 (2004)." Milazzo-Panico v. Panico, 103 Conn.App. 464, 468 (2007).
"[A] court should have the discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct . . ." Ramin v. Ramin, 281 Conn. 324 (2007).
ORDERS
The court orders the following:
1. Sole custody of the children is awarded to the wife. The husband shall have access to the children as shall be agreed upon by the parties but subject to the desires and schedule of the older son. Neither party shall injure the children's opinion of the other parent by their words or their actions. Neither parent shall permit any third party to injure the children's opinion of the other parent by their words or their actions. Neither party shall discuss any adult matters with the children, including but not limited to this trial, or any other court-related matter.
2. The husband shall pay child support to the wife in the amount of $300 per week and the parties shall divide any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or work-related day care or camp costs equally. The husband shall pay $20 per week on the outstanding arrearage of $10,200.
3. The husband shall pay alimony to the wife in the amount of $150 per week for 8 years. Said alimony will terminate upon the earlier of 8 years, the death of either, or the wife's remarriage. It is modifiable as to amount only.
4. The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to CGS sec 46(b)-56c.
5. The wife shall retain the marital residence known as 857 Foster St Extension, South Windsor Connecticut free of any claim of the defendant. She shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the husband harmless and indemnify him for any such expenses.
6. The husband shall retain his 2001 Chevrolet truck. The wife shall retain her 2003 Navigator and the Cadillac Sedan Deville vehicle. Each party shall be solely responsible for the maintenance, insurance and costs associated with said vehicles
7. The defendant shall pay 50% of any extracurricular activities up to an annual sum of $1,000 each and 50% of any work-related day care or day camp expenses for the minor child Jeremiah.
8. The defendant may claim the minor child John as an exemption for income tax purposes and the plaintiff may claim Jeremiah as an exemption for income tax purposes and when there is only one child to claim, the defendant may take the odd years and the plaintiff may take the even years but the ability for the defendant to take such dependency exemptions is conditioned upon his having been current on all of his financial obligations to the plaintiff as of December 31 of that year.
9. The court shall retain continuing jurisdiction regarding post-majority educational support.
10. The defendant shall use his best efforts to obtain as much life insurance on his life as he can obtain for a premium of $600 per year naming the plaintiff as beneficiary and he shall execute an authorization to the insurance company and provide it to the plaintiff authorizing her to verify at her option from time to time that the insurance is in force.
11. The defendant shall pay $5,000 toward the legal fees of the plaintiff with 6 months.
CT Page 9899
12. For so long as the plaintiff and the minor children are receiving medical insurance through Husky, the defendant shall reimburse the state of Connecticut the sum of $27 per child per week for such insurance. Both parties shall maintain medical insurance for the benefit of the minor children if it is available to them through their employment at a reasonable cost, reasonable cost being defined as a figure not greater than 7 1/2 percent of either party's net income.
13. The wife shall make available to the husband to pick up the air compressor, the home computer previously used in his business, all business parts and tools of his trade in the shed, all his business records and his clothes. The husband shall retain all ownership in the business, J N Petroleum, LLC and the wife will sign whatever documents are necessary to officially remove herself from the company.
14. Each shall keep their own bank accounts.
15. Each party shall pay one dollar per year alimony, modifiable only by the state of Connecticut for purposes of seeking reimbursement for assistance rendered to the family through medical assistance programs.
16. The defendant shall reimburse the state of Connecticut the sum of $7,800 representing unpaid and unallocated alimony and child support for the period July 30, 2007 through October 31, 2007 during which the plaintiff was receiving assistance from the state of Connecticut.
17. The payments and obligations referenced in these orders are intended to be family support/maintenance payments within the meaning of sections 523(a)(5) and 523(a)(15) the United States Bankruptcy Code and not dischargeable in bankruptcy. Each party shall be solely responsible for all debts they have been ordered to pay and they shall hold harmless and indemnify the other thereon.
18. Dissolution may enter.