Opinion
No. FA02 0187912S
August 29, 2003
MEMORANDUM OF DECISION
The parties were married in New Rochelle, New York, on September 14, 1991. Two children were born to the wife since the date of the marriage, to wit: Gianna Mosca, born December 11, 1992, and Charissa Mosca, born November 29, 1994. The plaintiff wife ("wife") moved out of the marital home at 28 Barnegat Road, New Canaan, Connecticut, on or about August 2002, and she currently lives in a rental unit in a two-family home in New Rochelle, New York, which is owned by her parents and the other unit occupied by them. The minor children reside with the wife. The defendant husband ("husband") also moved out of the family home on or about February 2002, and currently lives in a rental at Avalon Willow in Mamaroneck, New York. The family home remains unoccupied and both parties have agreed to its sale, although there continues to be a dispute regarding the listing price. On or about June 24, 2003, the parties initialed a Parenting Plan, as on file as part of the wife's Proposed Orders (#178.10), and at the time of trial asked that it be approved, with the exception of certain enumerated paragraphs, and incorporated by reference in the court decree. The trial itself took four days, and the court heard final argument on July 18, 2003.
The wife is 36 years old, and aside from a hyper-thyroid condition, she is in apparent good health. She testified that she received a B. A. in Accounting in 1989, and that she worked in that field for a short while, before she went to work in her father's business. At the time of the marriage, she was earning between $20,000 and $30,000 per year. She stopped working with the birth of her second child. In January 2002, she became a licensed real estate broker and worked for the William Pitt Agency from April to September. At that time she had to stop since her mother, for health reasons, could no longer watch the children. She concentrates her efforts upon the raising of the two minor children, which, given the special needs of Gianna, takes up a considerable portion of her time between volunteer school commitments and the child's appointments. The wife is concerned that the husband will not cooperate with her regarding treatment and therapy for Gianna. She testified that she remains "willing to be guided by the medical professionals."
The husband is 41 years old and in good health. He has a master's degree in Quantitative Analysis and worked for a while as a systems analyst. At the time of the marriage, he was earning between $30,000 and $40,000 per year. He worked first at MetLife and is now employed at J.P. Morgan-Chase selling annuities. He has enjoyed great success at this, and he testified that during most years at this position, his commissions have exceeded his draw. The parties filed joint income tax returns for the years 1998 through 2001, and the husband reported $345,247, $317,409, $291,812, and $394,399 on them respectively. He filed separately in 2002, and reported $410,866. His hours are long, and he is paid what he describes as an "unforgiven draw" of $175,000 per annum against which are charged his commissions. He testified that his territory was reduced and that the commission arrangement has recently changed to a less favorable one. His financial affidavit dated July 17, 2003, shows gross monthly income of $16,819.79, or $201,837.48 per annum. In addition, he receives a monthly car allowance of $298.84. However, in listening to the testimony and reviewing the evidence, the court seriously questions his bona fides. The figures that he used for his financial affidavit would appear to be selected in a light most beneficial to him as opposed to reflecting a more accurate picture of his actual earnings. Moreover, one has to question his judgment in the preparation and filing of income tax returns on which he has taken deductions to which he was clearly not entitled. This weighed significantly in the court's assessment of his credibility.
The wife testified that she had removed certain items from the family home during the pendency of this matter. She also presented the husband with a list of items which she would like to have. (Exhibits #17 and #18.) The husband refused. At the time he left the family home in January 2002, in addition to the family financial records, the husband took with him a tool chest and the family silverware (24-place setting). The wife seeks the sale of the remaining items in the family home, and an equal division of the proceeds, after giving the husband a $14,000 credit.
Much of the testimony and evidence centered round the special needs of the older daughter Gianna. At the age of three and one-half, she was diagnosed with Pervasive Developmental Disorder ("PDD"), a condition which prevents her from processing language properly. She is intelligent and considered "high functioning," but her condition is marked by hyperlexia, hypersensitive hearing (which can result in overstimulating her), and tactile problems (which result in poor handwriting and poor arm strength). She has difficulty following directions and interacting socially with her peers. The court has reviewed evaluations by Dr. Dietrich and others, as well as the testimony of Kathy Contento-Schmitz, M.S., a speech therapist with a background in PDD. The court found Dr. Dietrich's reports to be most credible. The child is currently enrolled in Our Lady of Perpetual Help School, and the evidence supports the mother's testimony that she is thriving in that environment. The mother volunteers her time at the school.
The parties both agree that the family home at Barnegat Road in New Canaan, which is currently occupied by neither, should be sold. In fact the evidence supports the fact that it has been on the market for a considerable time. The dispute between the parties centers on the listing price. They simply cannot agree. The court heard from Merry Bouscaren, from the William Pitt Agency, the co-listing broker, who testified as to the listing history of the property. The initial listing in August 2002 was for $1,495,000, and the property has been reduced several times since. The most recent was $1,199,000 in March 2003. The parties have received two offers, both substantially below $1,000,000. The witness recommended a lowering of the listing to between $1,075,000 to $1,095,000.
The wife testified that both parties agreed that theirs would be a "traditional marriage." However, she said that trouble began on the honeymoon when she developed a urinary tract infection. Her husband, she said, was unsympathetic and began "yelling at her." According to her, the husband has an "explosive temper," and the marriage was punctuated by outbursts of extreme anger on his part, at times in front of the children. Little things set him off. At one time he threw food while they were living at the apartment owned by her parents. She said that the husband was "controlling with money," and that they argued over it, in particular about the cost of speech and occupational therapy for their daughter Gianna, as well as her credit card and telephone bills. She described as the final straw, the husband's punching her during an argument in the Summer of 2000 at their New Canaan residence. The husband denied that he struck his wife. He could only counter with allegations of her use of bad language in front of the children. Despite his educational background as well as his occupational achievements, the court found the husband's testimony to be marked by evasiveness and feigned obtuseness, in particular regarding his finances. Overall, the court found the wife's testimony to be more credible.
FINDINGS
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-56, 46b-56c, 46b-81, 46b-82, CT Page 10003 46b-84, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:
1. That it has jurisdiction.
2. That the allegations of the complaint are proven and true.
3. That the marriage of the parties has broken down irretrievably, and that ample evidence exists that both parties have contributed to said breakdown. However, the court has accorded significant weight to the husband's controlling behavior as to family finances, as well as his temper, and that they were the major factors in the breakdown of the marriage.
4. That during the marriage, neither party has received any aid or assistance from the State of Connecticut or any town or political subdivision thereof.
5. That the combined net weekly income of the parties is in excess of the maximum Child Support Guidelines amount; that presumptive basic child support is $566.00 per week; that the husband's share is $566.00; and that it is appropriate and equitable to apply the deviation criteria set forth in Section 46b-215a-3 (b)(5) of the Child Support and Arrearage Guidelines Regulations on the basis of the coordination of total family support.
6. That the evidence, including his pay stub for June 13, 2003 (Exhibit #45), supports a finding that the husband's gross income (excluding $8,837.64 in restricted stock) for the first five and one-half months of 2003 is $100,950, which, if annualized would be $218,725; that such amount is a more reliable base upon which to calculate his net income; that he is being withheld at the rate of approximately 32% for state and federal taxes; and that his net income is approximately $148,965 on an annual basis.
7. That throughout the marriage, until their separation, both parties made significant contributions to the acquisition, maintenance, and preservation of the family assets, including the real estate.
8. That since the date of his employment with J.P. Morgan Chase, the husband has accrued a vested interest in certain retirement benefits, including a pension, deferred compensation, and a 401(k) plan; that in addition, he has acquired certain restricted stock of his employer; that said assets were acquired during the marriage; and that said property is marital property subject to equitable division pursuant to Section 46b-81 C.G.S. Bornemann v. Bornemann, 245 Conn. 508 (1998).
9. That the testimony and evidence, in particular the reports of Jeanne C. Dietrich, Ph.D. and Barbara H. Bach, MS, C.C.C., supports the finding that the minor child Gianna Mosca has special educational needs; that her current educational setting is appropriate and that it is in her best interest that she continues there; that the child will benefit by other therapy and counseling, including, but not limited to speech and language therapy, as well as a social skills group; that the wife assists the child through volunteer efforts at the school and with her schoolwork; and that it is in the best interest of the minor child that the wife continues to do so with minimal hindrance, and that, under all the circumstances, for her to secure full-time employment outside the home at this time would not be desirable.
10. That on November 25, 2002, pursuant to a Stipulation by and between the parties dated November 22, 2002, the court ordered the husband to pay pendente alimony and child support in the amount of $10,000.00 each for the months of January and February 2003; that on March 3, 2003, pursuant to a Stipulation by and between the parties, the court ordered the husband to pay 40% of his gross income each and every pay check; that as of June 24, 2003, the husband was in arrears in his obligation; that the arrearage as of February 28, 2003, was $9,647.00; that, in addition, the husband has failed to reimburse the wife for certain medical expenses as ordered totaling $1,560.00; and that the total arrearage for January and February 2003 and medical reimbursements is $11,207.00.
11. That under the terms of a Stipulation (#149.10) dated March 3, 2003, the parties agreed that further pendente lite alimony and child support for the period commencing March 1, 2003, would be determined at the time of trial; that the parties have preserved this issue consistent with the recent holdings of the Appellate Court in Evans v. Taylor, 67 Conn. App. 108 (2001), and Milbauer v. Milbauer, 54 Conn. App. 304 (1999); that the purpose of pendente lite orders is different from that of permanent orders Wolk v. Wolk, 191 Conn. 328, 330-31 (1983); that under all the facts and circumstances, it is equitable and appropriate that, effective March 1, 2003, the husband shall pay to the wife as and for periodic unallocated alimony and child support, the sum of $5,833.33 per month through and including August 31, 2003, for a total obligation of $35,000.00; that for the period March 1, 2003 through and including June 30, 2003, the husband has paid a total of $19,938.78; that as of June 30, 2003, there was an arrearage of $3,394.58; and that making a final calculation of the arrearage, the husband should be entitled to a credit for all sums paid from July 1, 2003, through and including August 31, 2003.
12. That based upon the statutory factors, including the age, education, health, prior earnings, and work experience of the wife, a time-limited award of alimony is appropriate. Ippollito v. Ippollito, 28 Conn. App. 745, cert. denied, 224 Conn. 905 (1992); Milbauer v. Milbauer, 54 Conn. App. 304, 312-15 (1999).
13. That each party has sufficient liquid assets, in particular, upon the sale of the marital home and the division of the net proceeds; and that each party should be responsible for the payment of their respective attorneys fees and costs incurred in connection with this action. Maguire v. Maguire, 222 Conn. 32 (1992).
14. That on June 24, 2003, the pates initialed and filed with the court a document entitled "Plaintiff's Proposed Parenting Plan"; that at the time of trial, the wife asked the court to approve same and incorporate it in the decree, and the husband has also made the same request, with the exception of paragraphs 2. (Decision Making), 3.e.iv. (July 4th, and 3.f. (Christmas); that as to said separate paragraphs, the husband asked the court to enter alternate relief and that the overall Parenting Plan, as amended by court order as set forth below, is fair and equitable and in the best interest of the minor children.
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 husband and wife shall have joint legal custody of the minor children, Gianna Mosca, born December 11, 1992, and Charissa Mosca, born November 29, 1994. The residence of the minor children shall be with the wife, subject to the reasonable, liberal and flexible visitation rights of the husband. Initial visitation with the husband shall be consistent with Plaintiff's Proposed Parenting Plan ("Plan") dated June 24, 2003, as amended hereby, and at such other times as the parties may agree.
Paragraph 2 of the Plan is eliminated and the following substituted in its stead: Except in the case of an emergency, and as set forth herein below, the parties shall consult with one another concerning all major issues involving the minor children, including but not limited to, health, education, and religious affiliation and training. In the event that the parties are unable to agree upon any issue regarding custody and/or appropriate visitation, they shall first bring the matter to the Family Relations Office for mediation prior to a determination by the Court. The foregoing notwithstanding, in the event that the parties are unable to resolve a dispute regarding the issue of speech and language therapy, or a social skills group for the daughter Gianna, including but not limited to cost, need for, frequency of visits, choice of therapist or other provider, the mother's decision shall control.
Paragraph 3.f. is eliminated and the following substituted in its stead: Commencing December 24, 2003, and each succeeding year, the husband shall have the children with him for Christmas Eve from 3:30 P.M. to 9:00 P.M. when the children shall return to the mother who shall have them with her for Christmas Day.
3. Commencing September 1, 2003, and monthly thereafter, the husband shall pay to the wife the sum of $9,000.00 as and for periodic unallocated alimony and child support, until the death of either party, the remarriage of the wife, or August 31, 2014, whichever shall sooner occur. In the event that the alimony shall terminate for whatever reason and either or both children are minors, commencing with the first day of the first month following such termination, and monthly thereafter, the husband shall pay to the wife a sum consistent with the then existing Child Support Guidelines or as the court may otherwise direct, as and for child support, until such time as the oldest child shall reach the age of eighteen years, at which time child support for the remaining child shall again be adjusted in accordance with the then existing Child Support Guidelines or as a Court may otherwise direct. The foregoing notwithstanding, if any child shall turn eighteen years old and is still in high school, then, in that event the child support shall continue until the first day of next month following graduation from high school or their nineteenth birthday, whichever shall sooner occur, pursuant to Section 46b-84 (b) C.G.S.
At such time as the husband's gross income shall exceed $220,000 in any given calendar year, he shall pay to the wife as and for additional periodic alimony and child support, 35% of his gross bimonthly paycheck in excess of $9,167.00, before any deductions, and he shall provide the wife with satisfactory evidence of his earnings by sending her a photocopy of each and every paycheck so affected at the same time as he sends the monthly alimony and support check to her.
4. In addition to the sums set forth above, as and for additional child support, the husband shall contribute to the education of each of the minor children up to and including high school, specifically at Our Lady of Perpetual Help School, or any other private or parochial school which best serves the special needs of the minor child Gianna, to include, but not be limited to tuition, books, lab fees, tutoring, and athletic fees, in an amount not to exceed $2,500 per year per child. Any sums in excess of this amount shall be divided by the parties 25% to the husband and 75% to the wife. Furthermore, the husband shall contribute to the after-school, summer, and weekend activities of the children, including sports, music lessons, dance lessons, as well as summer day camp or an organized summer recreational program for each of the children, up to and including the summer prior to their senior year of high school in an amount not to exceed $2,500 per year per child, and any sums in excess of this amount shall be divided by the parties 25% to the husband and 75% to the wife.
5. The alimony and child support arrearage, as well as medical reimbursement arrearage, as set forth in Findings 10 and 11 above, shall be paid to the wife from the husband's share of the net proceeds from the sale of the house at the time of the closing of title, and the court shall retain jurisdiction regarding any issue that may arise in connection herewith.
6. The parties shall list the marital home at 28 Barnegat Road, New Canaan, Connecticut, for sale no later than September 9, 2003, with a mutually acceptable broker who is a member of the Multiple Listing Service or other similar organization, familiar with real estate values in the New Canaan area, at a price no less than $1,095,000. If the parties have received no bona fide offer within 5% of the listing price within ninety (90) days after the listing date, one or both can request a lower listing price. If they are unable to agree upon a new listing price, each shall choose a broker who, in turn shall pick a third broker, and the new listing price shall be the average of all three brokers. Unless the parties shall otherwise agree, they shall accept any bona fide offer without unusual conditions, which is within 5% of the listing price (or any subsequent adjustments). Upon the sale of the property, from the proceeds shall be paid the customary and ordinary costs associated with a sale of real estate, including broker and attorney fees, conveyance taxes, fix-up expenses, and any mortgages and liens. After the payment of these sums, the net proceeds shall be divided 60% to the wife and 40% to the husband.
Both parties shall share the cost of any maintenance, repairs, or replacements in excess of $250 in the same proportion as their share of the net proceeds. Either party may advance the full cost of same and an adjustment shall be made at time of sale or transfer. Neither party shall further encumber the property nor draw on any home equity line on said property without the agreement of the other party. The Court shall retain jurisdiction with regard to any conflicts arising out of this issue.
7. Personal property shall be divided as follows:
A. The children's furniture shall remain in the wife's residence.
B. The balance of the home furnishings remaining in the marital home at 28 Barnegat Road, New Canaan (other than the children's furniture) shall belong to the husband free and clear of any further claims by the wife.
C. Each party shall be entitled to keep the automobile which they are currently driving (whether owned or leased) free and clear of any claims by the other, and each party shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register same. Specifically, the wife shall be entitled to the 2002 Ford Taurus, and the husband shall be entitled to the 2000 Lexus GS-300 and the 2002 Toyota 4-runner, both leased.
D. Except as otherwise set forth herein, each party shall be entitled to keep their respective savings, checking, and money market accounts free and clear of any claims by the other.
E. The following assets shall be divided equally by the parties:
1. The net proceeds from the sale of J.P. Morgan Chase restricted stock (Long-Term Incentive Plan); and
2. J.P. Morgan Chase Investment Account #C1A-812579
8. The retirement assets shall be divided as follows:
AS TO THE J.P. MORGAN CHASE 401(K) PLAN:
Effective as of the date of this Memorandum of Decision, the then balance of the J.P. Morgan Chase 401(k) Plan ("Plan") of the husband through his employer, together with any interest and/or additions accrued thereon as of the actual date of distribution, shall be divided by means of a Qualified Domestic Relations Order ("QDRO") which shall be prepared by the attorney for the husband at the husband's sole expense, 50% to the husband and 50% to the wife. The wife and her attorney shall be entitled to any and all information regarding the Plan necessary to the preparation and filing of the QDRO, including, but not limited to prior and current balances and prior account activity. No withdrawals, distributions, or transfers shall be made regarding the Plan except as consistent with this order. The Court shall retain jurisdiction to deal with any issues which may arise with regard to the preparation and filing of the QDRO and the division of the Plan.
AS TO THE J.P. MORGAN CHASE DEFERRED INCOME PLAN:
Effective as of the date of this Memorandum of Decision, the then balance of the J.P. Morgan Chase Deferred Income Plan ("Plan") of the husband through his employer, together with any interest and/or additions accrued thereon as of the actual date of distribution, including any contributions to the 401(k) Excess Savings Plan, shall be divided by means of a Qualified Domestic Relations Order ("QDRO") which shall be prepared by the attorney for the husband at the husband's sole expense, 50% to the husband and 50% to the wife. The wife and her attorney shall be entitled to any and all information regarding the Plan necessary to the preparation and filing of the QDRO, including, but not limited to prior and current balances and prior account activity. No withdrawals, distributions, or transfers shall be made regarding the Plan except as consistent with this order. The Court shall retain jurisdiction to deal with any issues which may arise with regard to the preparation and filing of the QDRO and the division of the Plan.
AS TO THE J.P. MORGAN CHASE PENSION PLAN:
Effective as of the date of this Memorandum of Decision, that portion of the J.P. Morgan Chase Pension Plan ("Plan") of the husband through his employer and vested and accrued as of the date of this Memorandum of Decision, shall be divided by means of a Qualified Domestic Relations Order ("QDRO") which shall be prepared by the husband's attorney at the husband's sole expense, 50% to the husband and 50% to the wife. Unless the parties shall otherwise agree, the husband shall elect a joint and survivor annuity, and in the event that the husband shall predecease the wife prior to drawing his pension, the wife shall be entitled to 100% of that portion of the survivor benefit vested and accrued as of the date of this Memorandum of Decision. Any benefit vesting and accruing thereafter shall belong to the husband. The wife and her attorney shall be entitled to any and all information regarding the Plan necessary to the preparation and filing of the QDRO. The Court shall retain jurisdiction to deal with any issues which may arise with regard to the preparation and filing of the QDRO and the division of the Plan.
9. The husband shall promptly notify his employer as to the change of marital status and shall cooperate with the wife in obtaining continuation health insurance coverage as provided by state and federal law. The wife shall be responsible for the payment of any premiums due for such coverage.
10. The husband shall maintain and pay for health insurance for each of the minor children so long as he shall be obligated to pay child support for that child. Unreimbursed medical, dental, orthodontic, optical, pharmaceutical, psychiatric, and psychological expenses for the minor child, shall be divided by the parties, 65% by the husband and 35% by the wife. In addition, as to the minor child Gianna, the court includes within its definition of such expenses, speech and language therapy, as well as a social skills group. The provisions of General Statutes § 46b-84 (e) shall apply so as to permit the wife to file all medical claims for the minor children directly with the insurance carrier.
11. The husband shall maintain the existing CNA life insurance having a face value of $500,000, as well as a portion of the existing group term life insurance though his employer in the amount not less than $250,000, so long as such group term life insurance is available as an incident of his employment and available to him at reasonable cost, and he shall name the wife and children as equal irrevocable beneficiaries thereof for so long as he has an obligation to pay alimony and/or child support under the terms of this decree. The husband shall make no further borrowing against his life insurance, including loans for the payment of any premiums thereon, so long as he has such obligation. Meaning and intending hereby that the husband shall have in place at all times during the period of his alimony and/or support obligation a minimum of $750,000 coverage taking into account the effect of any existing loans. Said life insurance is to be considered as and for security for his alimony and support obligation and not as a property settlement.
12. Except as otherwise set forth herein, the parties shall each be responsible for the debts as shown on their respective financial affidavits, and they shall indemnify and hold each other harmless from any further liability thereon. Specifically, the husband shall be responsible for the debt to his father as shown on his financial affidavit, as well as the balance due and owing on the lease of the Toyota 4-Runner.
13. The wife shall be entitled to claim the personal exemption for each of the minor children commencing with the tax year 2003 and thereafter.
14. The court hereby reserves jurisdiction to enter an educational support order pursuant to General Statutes § 46b-56c ( P.A. 02-128.)
15. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
16. The Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52-362 in order to secure the payment of the alimony order.
17. Pursuant to General Statutes § 46b-63 (a), the court HEREBY RESTORES the birth name of the wife to her, to wit: Cecelia LoCicero.
THE COURT
SHAY, J.