Opinion
No. FA 04-0485745S
October 20, 2004
MEMORANDUM OF DECISION
The principal issues in this limited contested dissolution are alimony, the amount of child support, and equitable distribution of property. The plaintiff seeks an equal division of the marital home and no award of alimony. The defendant has requested lifetime alimony plus an unequal division of the equity in the marital home. Both parties also dispute the earnings and earning capacity claimed on the financial affidavit of the other for purposes of calculating child support.
The parties appeared with counsel for trial on October 18, 2004. Each party testified and offered into evidence certain exhibits. The court has observed the demeanor of the parties and evaluated their credibility. The court has carefully considered all of the evidence, including the exhibits and the testimony presented, according to the standards required by law, and the statutory criteria for dissolving a marriage and entering orders regarding alimony, child support, and equitable division of property and debt.
After making jurisdictional findings and a brief summary as to the background and situation of each party, the court will discuss the key issues here.
I — JURISDICTIONAL FINDINGS
The court finds that it has jurisdiction over the marriage. The parties were married in Bridgeport, Connecticut, on August 2, 1975, and two of their four children are still minors. One party has resided in Connecticut continually for more than one year before the bringing of this action. The parties have not been recipients of state or municipal assistance. The marriage between the parties has broken down irretrievably.
II — DISCUSSION A. The parties
The plaintiff is 54 years old and in good health. For much of his life he worked as a machinist, but after his employer laid off its machinists and outsourced those positions, he bumped into a less well-paying job as an assembler and calibrator, now earning almost four dollars less than when he worked as a machinist. With machinist jobs increasingly hard to find on the open market, he has decided to stay at his current employer, even though earning less than before, in order to maintain his excellent benefits and pension, the latter of which increases in value with each year of service. He earns $17.49 per hour for forty hours a week and had also earned $3,500 in overtime pay in 2004 through the end of September. During the marriage he paid the mortgage and all the household bills.
The defendant is 50 years old and not in good health. She requires regular medical care for high blood pressure and to avoid losing a kidney. She has limited job skills as well and only a high school diploma. Although she worked full-time until her first pregnancy 23 years ago, after that she gave up her own career possibilities to care for the parties' children and since then she has worked only part-time or stayed at home with the children. She now works 38 hours per week in two part-time jobs, one as a literacy aid in the Branford public school system and the other at a convalescent home on weekends. She earns approximately $313 gross and $261 net per week. She has unsuccessfully tried to obtain better-paying full-time employment since the parties separated in December 2003. She used her income during the marriage on spending for the children and miscellaneous household expenses.
Both parties at trial described a loveless marriage of convenience in recent years. The defendant, who had given up her own career and become financially dependent on the plaintiff in order to raise the parties' children, was willing to continue with this arrangement, but the plaintiff was not. As he became increasingly unhappy in the marriage, however, he never said anything to the defendant about his dissatisfaction. Instead, he began spending increasing amounts of time on the internet, where he engaged in emails and on-line chats with other women and eventually decided to stop being faithful to his wife. In July 2003, when the defendant realized that the plaintiff was spending the fourth of July with another woman and then confronted him, he admitted having done so, told his wife how unhappy he was, and demanded that the two parties stay together for the sake of their children but go their separate ways. Stunned by what he was saying, the defendant was silent, and the plaintiff mistakenly regarded her silence as acquiescence in his desire to start seeing other women, which he did. The parties rarely spoke after that. During the next six months, the plaintiff spent time with at least two other women, but continued to pay the household bills and expected defendant to continue to do the household chores, wash his clothes, and cook meals for the family. In December, without advance notice to the defendant, the plaintiff moved out of the marital home into his mother's house in New Haven. When the plaintiff began having intimate relationships with other women that he had met on the internet, he broke the implicit agreement of the parties about the nature of their marriage that had existed for many years. When he abandoned his marriage to the defendant, he deprived her of the support, financial and otherwise, that she had legitimately expected for the remainder of her life. He gave the defendant no advance notice or warning of his desire to change the terms of their relationship. By not doing so, he prevented her from beginning to prepare for a different life sooner or to take steps to save their marriage.
III — FINANCIAL ISSUES
The defendant's claim for lifetime alimony rests in part on the traditional notion that a person supported during marriage by a spouse has a right to continuing support after the marriage dissolves. Our courts have expressed this concept, for example, by stating that "the purpose of alimony is to meet one's duty of support"; Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); and that alimony "is damages to compensate for loss of marital support and maintenance." Crowley v. Crowley, 46 Conn.App. 87, 98, 699 A.2d 1029 (1997). The legislature has tempered this duty of support with numerous factors, set forth in General Statutes § 46b-82, that a court must consider "in determining whether alimony shall be awarded, and the duration and amount of the award." These include the following:
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 parents securing employment.
The reference to § 46b-81, the statute concerning assignment of marital property, makes clear that a court's alimony decision may take into consideration the court's equitable distribution of property. The statutory criteria for property distributions in § 46b-81 are similar to those for alimony, except that for property distributions the law omits "the desirability of . . . securing employment" as a factor and adds "the opportunity of each for future acquisition of capital assets and income" and "the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." Whereas alimony "is based primarily upon a continuing duty to support"; Blake v. Blake, 211 Conn. 485, 498, 560 A.2d 396 (1989); "the purpose of property division is to unscramble the ownership of property, giving each spouse what is equitably his." Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982).
"[A] trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria." (Internal quotation marks omitted.) O'Neill v. O'Neill, 13 Conn.App. 300, 306, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988) "While the trial court must consider the delineated statutory criteria, 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." Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). It is not obligated to make express findings on each and "is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others." Graham v. Graham, 25 Conn.App. 41, 45, 592 A.2d 424 (1991). The weight to be placed on each factor depends on the circumstances of each case. Debowsky v. Debowsky, 12 Conn.App. 525, 526-27, 532 A.2d 591 (1987); Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). Here the court has fully considered all of the statutory factors for awarding alimony and distributing property in light of the evidence offered at trial.
In the present case, the defendant emphasizes, among those factors, the length of the marriage, her claim that the defendant is at fault for the dissolution of the marriage, her more fragile health, and her more limited income, vocational skills and employability. Plaintiff, on the other hand, urges the court to find that the marriage was essentially over in all but legal terms long before the defendant learned of his internet liaisons. He also claims that defendant has a greater earning capacity than her present income reflects. The length of marriage; the disparate incomes, vocational skills, and employability of the two parties; the plaintiff's greater responsibility for the breakdown of the marriage; and the defendant's needs; along with the other statutory factors all weigh heavily here in the defendant's favor for purposes of awarding her alimony and assigning property.
A. Alimony
The court thus finds, after considering all the statutory factors, that lifetime alimony is appropriate here, in the amount of $50 per week.
B. Child support
The presumptive child support amount is for plaintiff to pay $207 per week for the two minor children plus 48 per cent of qualifying child care expenses and unreimbursed medical expenses of more than one hundred dollars per year per child.
C. Property
"There are three stages of analysis regarding the equitable distribution of each resource; first, whether the resource is property within Section 46b-81 to be equally distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties." Krafick v. Krafick, 234 Conn. 783, 792-93 (1995). The court finds that all items listed on each party's financial affidavit as assets are property within the meaning of § 46b-81 and hence subject to distribution by the court.
The marital home is worth $280,000 and has mortgage indebtedness of $41,000. Plaintiff also owns a one-fifth share in the New Haven home in which his mother lives and has a right of lifetime occupancy. His share is now worth $36,000. Both parties have certain IRAs that they have already agreed to divide equally, an agreement the court finds fair and equitable in light of its other orders. Plaintiff also has a pension from Dressler. In view of all the statutory factors, the court finds it fair and equitable to award defendant 55 per cent of the equity in the marital home, in which she may continue to reside until the youngest child graduates from high school and which shall thereafter be sold, and 50 per cent of his pension benefit from Dressler based on its value at the time he begins to start receiving the pension. The remaining distribution of property found fair and equitable is set forth in the orders below.
IV — ORDERS
After considering all the statutory criteria for dissolving a marriage and entering orders regarding custody, visitation, child support, alimony, equitable distribution of property and assignment of debt, and orders regarding insurance, together with applicable case law and the evidence presented here, the court hereby enters the following orders:
Section 46b-84(e) provides as follows: "At any time at which orders are entered in a proceeding for dissolution of marriage, . . . if health insurance coverage for a child is ordered by the court to be maintained, the court shall provide in the order that (1) the signature of the custodial parent or custodian of the insured dependent shall constitute a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the medical services, to the custodial parent or to the custodian, (2) neither parent shall prevent or interfere with the timely processing of any insurance reimbursement claim and (3) if the parent receiving an insurance reimbursement payment is not the parent or custodian who is paying the bill for the services of the medical provider, the parent receiving such insurance reimbursement payment shall promptly pay to the parent or custodian paying such bill any insurance reimbursement for such services. For purposes of subdivision (1), the custodial parent or custodian is responsible for providing the insurer with a certified copy of the order of dissolution or other order requiring maintenance of insurance for a child provided if such custodial parent or custodian fails to provide the insurer with a copy of such order, the Commissioner of Social Services may provide the insurer with a copy of such order. Such insurer may thereafter rely on such order and is not responsible for inquiring as to the legal sufficiency of the order. The custodial parent or custodian shall be responsible for providing the insurer with a certified copy of any order which materially alters the provision of the original order with respect to the maintenance of insurance for a child. If presented with an insurance reimbursement claim signed by the custodial parent or custodian, such insurer shall reimburse the provider of the medical services, if payment is to be made to such provider under the policy, or shall otherwise reimburse the custodial parent or custodian."
A. Dissolution of marriage
The marriage of the parties, having broken down irretrievably, is hereby dissolved.
B. Custody
The court orders sole legal and physical custody of the minor children to the defendant, with plaintiff to have the right of reasonable visitation on Tuesdays and other times agreeable to the parties, so long as the children's therapist does not regard visitation to be harmful to the children.
C. Child support
Plaintiff shall pay defendant child support of $207 per week for the two minor children, plus 48 per cent of qualifying child care expenses and unreimbursed medical expenses of more than one hundred dollars per year per child.
D. Post-secondary education
The court retains jurisdiction, at the request of the parties, to enter an order for payment of post-secondary education expenses for the two minor children in accordance with § 46b-56c of the General Statutes upon the filing of a written motion or petition by either party.
The plaintiff shall be responsible for paying for the remaining semester of tuition for the parties' second oldest child, Melissa.
E. Alimony
Plaintiff shall pay alimony of $50 per week. Alimony shall terminate upon death of either party, remarriage of the defendant, or her cohabitation with a male pursuant to General Statutes § 46b-86(b).
F. Household expenses
Plaintiff shall continue paying all household expenses that he paid during the pendente lite period (the mortgage and utilities — cable television, telephone service, electricity, water, and gas) through the end of October 2004. Alimony and child support shall begin November 1, 2004.
G. Wage Execution
The court orders an immediate wage withholding from plaintiff for payment of his alimony and child support obligations. Until the wage execution takes effect, however, he shall make payments directly to defendant.
H. Health insurance
The plaintiff shall keep the minor children on his health insurance so long as available to him at no or reasonable cost through his employer.
The plaintiff shall cooperate with defendant in permitting her to apply for COBRA continuation benefits of health insurance.
The provisions of General Statutes § 46b-84(e) shall apply.
I. Property distribution 1. The Marital Home CT Page 15932
Defendant may reside in the marital home until the youngest minor child graduates from high school. While living there she shall be responsible for all its expenses and hold plaintiff harmless on the current mortgage and all other expenses on the marital home. After the youngest child has graduated from high school, or at any time before then if defendant vacates or desire to vacate the premises, the parties shall place the home for sale. Proceeds from the sale, after payment of the mortgage and expenses of sale, shall be divided between the parties 45% to plaintiff and 55% to defendant. The court retains jurisdiction over sale of the home.
While she remains in the marital home, defendant shall keep the home in good repair and the mortgage and taxes current. Any arrearages on mortgage and taxes due for times in which she resides there after the date of this decision shall be deducted from her share of the net proceeds from sale of the marital home.
2. Deferred Compensation
The parties shall immediately divide their IRAs, valued as of September 30, 2004, such that each one receives the same amount. Defendant is awarded half of plaintiff's pension from Dressler, Inc., valued as of the date he begins collecting his share of the pension. The court retains jurisdiction to approve any qualified domestic relations orders necessary to effectuate this division of the parties' deferred compensation. Plaintiff shall be responsible for preparing the QDROs, and the parties shall split the cost thereof.
3. Household property
The parties shall divide the contents of the marital home between themselves. The court retains jurisdiction over the division of household property, but if the parties cannot agree, they shall seek mediation from family services before seeking a court order.
4. Other assets
The plaintiff shall name the defendant as the beneficiary of the two life insurance policies listed on his financial affidavit as security for his alimony and child support obligations and shall keep these policies in effect until both such obligations have terminated.
Each party may keep other assets listed on its most recent financial affidavit.
J. Debts
Plaintiff shall assume responsibility for the currently unpaid property taxes on the marital home that were due in July 2004 and pay them promptly. Defendant shall be responsible for all property taxes thereafter.
Each party shall be individually responsible for other debts listed on its own financial affidavit.
K. Tax exemptions
Plaintiff will be entitled to the tax exemption for Jason (and defendant for Melissa) as long as defendant is eligible to claim a dependence tax exemption for at least one of the parties' children. When Jason is the only child of the parties that either would be eligible to claim for a dependency tax exemption, they shall alternate years of being able to claim him, the plaintiff being eligible to claim Jason as a dependent in the first such year.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT