Opinion
No. FA07-4007373-S
December 7, 2007
MEMORANDUM OF DECISION
I. BACKGROUND AND FACTS
The plaintiff (Husband) brought this action by a writ, summons and complaint filed on March 23, 2007. In the complaint, he seeks the dissolution of his marriage to the defendant (Wife), joint custody of the minor child with primary residence with the Wife, visitation, alimony and an equitable division of the family assets and liabilities. The parties have agreed to a custody and parental access plan, filed with the court, which the court finds to be in the best interest of the minor child and hereby adopts by reference and incorporates into the judgment.
The court finds the following facts. The parties were married in North Haven on June 2, 2001 and have been residents of Connecticut for at least twelve months prior to the dissolution of this marriage. There is one minor child, Aidan Pelletier, who is issue of the marriage and who was born on April 24, 2002. Neither party nor their minor child has received state or municipal assistance during the marriage. The parties have been living separately and apart since January 2007 when the Husband left the marital home. There is no dispute over the fact that the marriage has broken down irretrievably and there is no reasonable hope for reconciliation.
The parties began living together in a home owned exclusively by the Wife in 1994, located at 17 Margo Lane in Clinton. The Clinton home required extensive renovations that were primarily performed by the Husband, with the payment for materials, subcontractors and appliances primarily made by the Wife. Approximately seven years after the parties began living together, they married on June 2, 2001 and continued to renovate and live at the marital abode in Clinton until March 28, 2003. Significant renovations were made to 17 Margo Lane after the marriage of the parties, which included the second renovation of a bathroom, interior trim, the front door and the completion of countertops in the kitchen.
For purposes of taxation, the Wife estimated in her 2003 tax return that the value of all renovations made to the Clinton home totaled $25,000. This figure was not rebutted by the Husband. When the Wife sold the home in 2003, she used the equity of $69,766.06 accumulated in the property to purchase the parties' new marital abode located at 45 Summit Drive in Wallingford on May 15, 2003. The purchase price for this new home in Wallingford was $272,000. The parties stipulate to its present value of $357,500, subject to mortgages in the amount of $202,000, all exclusively in the name of the Wife.
The Wife has been steadily employed for many years and has provided this family with a stable income and the accumulation of assets. She currently earns a gross weekly wage of $1,981, and has accumulated retirement accounts in the amounts of $177,880.60 in a M I Retirement Account (formerly Scudder) and $15,889 in a Fidelity Investment Account. Based upon evidence presented at trial, these accounts are currently valued at $193,769.60. Of this amount, $125,830.90 is found to be a marital asset, as these retirement accounts were valued at $67,938.70 at the time of the marriage in 2001. In addition, she has paid most of the family's household bills, including the mortgage, taxes and insurance, with the exception of the Husband's automobile loan, the cell phone bill and most of the family groceries, which he historically paid from his own resources.
See Defendant's Exhibit E. This account was valued at $53,319.15 at the time the parties were married in 2001.
Identified in Wife's Financial Affidavit as Fidelity Account. This account was valued at $14,619.55 at the time the parties were married in 2001. See Defendant's Exhibit G.
The Wife received a bonus of $37,500 in February of 2007, which is not reflected in her financial affidavit. $25,000 of this bonus was placed into a "529" account by the Wife as an accelerated gift to Aidan, the parties' minor child. The Husband agreed to sign all paperwork necessary for the timely effectuation of this accelerated gift. The remaining sum was paid to her attorney to defend this action for dissolution.
The Husband is currently employed as a salesman at Sleepys. His gross weekly wage is $916.50. However, he has had an inconsistent and precarious employment history, including numerous periods of unemployment prior to and during the marriage. Approximately four years ago, the Husband declared bankruptcy over a debt he identified to be between $5,000 and $8,000. In 2003, the Husband also had gastric bypass surgery and lost significant weight, which the Wife associates with other changes in his behavior, such as staying out late to socialize with friends and the purchase of a Harley Davidson motorcycle in 2005.
Of particular relevance to this case is the termination of the Husband's relatively lengthy employment with a business concern known as MRI. This event occurred in 2004 and appears to have been a turning point in the financial relationship between the parties. When he was terminated from his employment with MRI, the Husband agreed to repay $18,826.93 in funds owed to his employer due to his "willful misconduct." The Wife immediately repaid $11,000 of this debt to MRI using marital assets held exclusively in her name. Soon after the termination of his employment with MRI, the Husband agreed to deposit his pay check into the Wife's bank account, and he had limited access to these funds through the use of an ATM or debit card, for his personal expenses. The Wife then assumed all family financial obligations.
See Defendant's Exhibit A.
According to the Husband, the remaining balance was paid by using his 401K account. The details of this account are not before the court and the account is not currently reflected on his financial affidavit. But see Defendant's Exhibit A for an explanation of the nature and size of the account as it existed in 2004.
Soon after leaving MRI, the Husband primarily engaged in his own, independent business installing home theaters. In order to purchase inventory for the business, he used his Wife's credit cards on a regular basis, promising to repay her with proceeds from the business. This was rarely done. On one occasion, the Wife testified that a $4,000 charge was, in fact, repaid. She also testified that he paid her $2,000 at or about the time he left the marital abode in January of 2007. Instead of repaying this credit card debt accrued on behalf of his business, funds received from the business were primarily used by the Husband for his own purposes. The amount of unreimbursed charges made to the Wife's credit cards for the Husband's business expenses total $84,457.55, of which $30,798.20 is still owed by her to creditors.
The Husband claims the breakdown of the marriage occurred eight months prior to leaving the marital home in January of 2007, when he believed that there was no communication between the parties. He requested that his wife join him in marital counseling seven months prior to leaving the marital home. In May of 2006, approximately seven months before leaving the marital home, the Husband met another woman by the name of Tisha Hunt and, shortly thereafter, they began an intimate relationship. Although the Husband denies that his relationship with Tisha Hunt was the cause of the marital breakdown, he describes his relationship with her as the "catalyst" for leaving the marital home to live with her in January of 2007.
The Husband also testified that he is now a defendant in two larceny cases, arising out of transactions associated with his home theater business. One case is in Meriden and the other case is in Bantam. The allegations involve transactions totaling approximately $15,000. Further, the Husband owes child support to the Wife in this case. An arrearage of $4,165 was stipulated by the parties at the time of trial, which took place on November 30 and December 3, 2007.
II. DISCUSSION A. Alimony
The Husband seeks alimony in this case. In particular, he seeks $200 per week in alimony for a period of three years. This is a marriage of 6 years, and the Husband's income is substantially lower than the Wife's income. However, based upon the facts of this case and the criteria set forth in General Statutes § 46b-82(a), the court sees no purpose for awarding alimony to either party in this case. Moreover, the Wife continues to be obligated to pay over $30,000 of the Husband's business debts, which is approximately equal to his request for alimony.
The provisions of General Statutes section 46b-82(a) are as follows: "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."
B. Property
At the outset, it is important to note that the parties have divided their personal property to their satisfaction, as there is no claim before the court for the transfer of personal property, except to the extent that personal property may include money or other intangible property. The parties do, however, disagree over the equitable distribution of retirement accounts and real property, all held exclusively in the Wife's name.
In considering the statutory criteria delineated in General Statutes § 46b-81 for the disposition of this property, "no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case." Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989), (quoting Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980)). In addition, "[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984).
The provisions of General Statutes section 46b-81 are as follows: "(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
(c) 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."
The length of this marriage is approximately six years. Before moving into their home in Wallingford, this couple lived in a home owned by the Wife in Clinton. The couple lived in the Clinton home for approximately nine years, during two of which they were married. This home was substantially renovated by the parties, both before and after their marriage in 2001, primarily using the Wife's money and the Husband's labor. The wife has identified the value of these improvements as $25,000. The Clinton home was sold while the parties were married and approximately $70,000 of the equity from the sale of the home was used to purchase their current marital abode in Wallingford. The Wife argues that the court should not consider premarital improvements to the Clinton home in the calculation of marital assets in this case, citing the case of Loughlin v. Loughlin, 280 Conn. 632, 910 A.2d 963 (2006).
In Loughlin, the court held "that a dissolution court properly may consider events that occur during a period of cohabitation as indirectly bearing on other statutory criteria, such as the health, station, occupation, amount and sources of income, vocational skills and employability . . . Based on the previously reviewed jurisprudence of this state, however, it is clear that consideration of a period of cohabitation that precedes a marriage as part of the statutory factor of "length of the marriage" in a dissolution action is improper." (Emphasis in original. Internal quotation marks and citations omitted.) Loughlin v. Loughlin, 280 Conn. 632, 644, 910 A.2d 963 (2006).
One of the statutory criteria included in § 46b-81 concerning the assignment of property is ". . . the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." General Statutes section 46b-81(c). In this case, the Husband contributed significantly to the preservation and appreciation in value of his Wife's real property, both while they cohabited and while they were married and living in Clinton. In addition, the $70,000 of equity realized from the sale of the Clinton home occurred during the marriage. Under these circumstances, the court finds that Loughlin may not be used by the court to exclude consideration of this $70,000 as a marital asset in this case.
In his prayer for relief, the Husband seeks an equitable division of the marital assets. At trial and in his proposed orders, he seeks half of the assets of this marriage, in addition to an award of alimony which has been denied by the court. In an equitable division of the assets of this marriage, the court must consider the tremendous marital debt incurred by the Husband unilaterally which, in large measure, has been satisfied by marital assets accumulated by the wife's hard work and diligent financial planning. These marital debts amount to $95,457.55.
By the testimony of the Wife, she paid $11,000 of her Husband's debt to MRI, and he also charged $84,457.55 in business debt to various credit cards in her name, which he promised to repay.
The current assets of the marriage include $155,000 of equity in the marital abode located at 45 Summit Drive, Wallingford. In addition, by the court's calculation, the Wife's M I Retirement Account (formerly Scudder) and the Fidelity Investment Account, currently valued at $193,769.60, hold $125,830.90 in assets accumulated during the course of this marriage. These marital assets total $280,830.90.
In light of the causes of the marital breakdown in this case and the Husband's significant contribution to the debts of this family since 2004, the Wife justifiably argues that an equitable division of the assets has already occurred by the family having to absorb nearly $100,000 of the Husband's debts. However, given his historically lower income, the Husband is far less likely than the Wife to have the opportunity to acquire capital assets in the future. Furthermore, he should be credited in this calculus of equities with his efforts to enhance the value of the Guilford home before it was sold as a marital asset in 2003, without which they may not have had the good fortune to have $155,000 of equity in the Wallingford home today.
Considering the statutory and equitable factors cited above, the court concludes that although there should be an equal division of the assets, the Wife should be fully credited for her Husband's unilaterally incurred encumbrances. Half of the marital assets found by the court equal $140,415.45. The Wife is hereby credited $95,457.55 from this amount for her Husband's debts that she has either paid or continues to owe in her own name, leaving $44,957.90 to be paid by her to the Husband.
III. FINDINGS
The court has jurisdiction in this case. The court finds the allegations of the complaint to be true. The marriage has broken down irretrievably and there is no reasonable possibility that these two individuals will reconcile the differences that exist between them.
IV. ORDERS
The court orders the marriage dissolved, effective today, December 7, 2007 and issues the following, additional orders.
1. Alimony
Neither party shall receive alimony.
2. Child Support
The Husband shall pay child support pursuant to the Child Support Guidelines. According to the Guidelines, weekly child support shall be paid by the Husband in the amount of $107. The parties have stipulated to a child support arrearage of $4,165. The Husband shall pay an additional $20 per week until this arrearage is satisfied. Unreimbursed medical expenses and daycare costs shall be divided pursuant to the Guidelines, as follows: 70% by the Wife and 30% by the Husband.
3. Property Division
The Wife owns real property located at 45 Summit Drive, Wallingford, Connecticut. The Husband shall relinquish all his right, title and interest in and to said property to the Wife and she shall have the exclusive ownership of said home. The Wife shall pay the mortgage secured by said premises and save and hold harmless the Husband from any liability thereon.
Each party shall keep and maintain their own motor vehicles. The Wife shall keep her 2006 Volkswagen Touareg and she shall pay the loan balance and hold the Husband harmless thereon. The Husband shall keep his 2006 Harley Davidson Sportster and shall pay the loan balance and hold the Wife harmless thereon.
Each party shall retain exclusive ownership of their pension plans, deferred compensation, 401(k) or IRAs.
4. Counsel Fees
Each party shall pay their own counsel fees. The parties shall equally share the attorneys fees for the guardian ad litem.
5. Life Insurance
The Husband shall, until such time as he no longer is obligated to support the minor child, maintain a life insurance policy of at least $100,000 for the benefit of the child with the Wife named as Trustee thereon, as available to him through his employment or union. The Husband shall mail proof that such insurance is in place to the Wife on an annual basis, during the month of January and reasonably thereafter upon 30 days' written request by the other party.
In the event of the death of the Husband without the required insurance in effect the Wife, on behalf of the child or the child if he has attained the age of majority, shall have a preferred debt claim against the estate of the Husband in the amount equal to the amount of insurance which should have been in full force and effect as well as the reasonable cost, including attorneys fees, of establishing such claim.
6. Medical Insurance
Effective upon the decree of dissolution, neither party shall have any obligation to maintain the other party on an existing health insurance, through his or her employment, however, they shall cooperate in any way necessary to allow the other spouse to elect to receive his or her COBRA benefits, if any.
The Wife shall provide health insurance for the benefit of the minor child as available to her through her employment, and the cost of uninsured or unreimbursed medical, dental, orthodontic and psychiatric care for the minor child shall be borne by the parties in accordance with the Child Support Guidelines: 30% to the Father and 70% to the Mother. The parties shall not incur an uninsured or unreimbursed cost in excess of $100.00 without first notifying and receiving consent to the treatment from the other party, except in the event of an emergency. Such consent shall not be unreasonably withheld. Health Insurance provided for herein shall be subject to the provisions of § 46b-84(e) of the Connecticut General Statutes.
7. Division of Liabilities
Each party shall be responsible for the debts as shown on their respective financial affidavits and shall indemnify and hold each other harmless regarding these obligations, except as otherwise provided in these orders.
8. Post-Majority Support and Education
The Court shall maintain jurisdiction over the obligation of post-majority support and education.
9. The Wife shall pay the Husband the sum of $44,957.90, representing his share of the equitable division of the marital assets, within sixty (60) days.
10. So long as the minor child primarily resides with the Wife, she shall have the right to claim him as a dependent for federal tax purposes.
11. The Husband has agreed to sign paperwork to effectuate an accelerated gift of $25,000 to the minor child. He is ordered to sign the necessary paperwork or forms to effectuate this gift under federal tax law within fourteen (14) days after delivery to him or his attorney.
V. STIPULATION CONCERNING CUSTODY AND ACCESS
At the time of trial, the parties stipulated to a custody and parenting access plan, which was approved by the Guardian Ad Litem and found by the court to be in the best interest of the minor child. The stipulated custody and access plan is adopted by reference and incorporated into the judgment.