Opinion
No. FA 08-4108031 S
September 2, 2009
MEMORANDUM OF DECISION
Plaintiff sues for dissolution of marriage. This court has jurisdiction of the action, and all statutory stays have expired. Defendant was duly served at her place of abode and has appeared herein through counsel. The parties are divided as to property division and alimony. The court has heard them both and decided these issues pursuant to the directives of CONN. GEN. STAT. §§ 46b-81 and 82, and applicable case law.
The parties intermarried on December 13, 1980, at North Stonington, Connecticut. Defendant's maiden name was Maine. This is a second marriage for both parties. No minor children have been born to the defendant since the date of the marriage.
Mr. Walter is 68 years old and is retired from a 36-year career at Electric Boat in Groton, CT. He has a number of health issues which affect his quality of life. None of these, however, have any meaningful impact upon his income, which consists largely of guaranteed pension, social security, and annuity payments, and discretionary 401-k account withdrawals flowing from conservative investments. In 2008, these yielded gross income to him of over $1,800 per week, and net of about $1,500 per week.
Additionally, he earns on average $300 additional weekly net from hay sales and rental of a home in which he possesses a life tenancy.
Ms. Walter is 55 years old, and works as a certified nurse's assistant at Westerly Hospital in Rhode Island, a position she has held for several years and in which she appears to have good job security. From her employment, Ms. Walter grosses almost $600 and nets $414 weekly. She is a diabetic but continues to work a full schedule, as her job is her sole source of income.
Plaintiff's estate comprises the following:
CT Page 14781
I. Real Estate (all in N.Stonington, CT): Net Value:
A. 60 Dennison Hill Road — 28-acre parcel $450,000
B. 60 Dennison Hill Road — 10-acre parcel $15,000
C. 82 Boombridge Rd. — house and lot $234,000
D. Boombridge Rd. — acreage (life estate only) See below
E. 126 Clarks Falls Rd. — house and lot (life estate only) See below
II Individual Retirement Accounts and Annuities:
A. AIG Sun America $233,580
B. ING Qualified IRA $79,690
C. ING Non-qualified IRA $111,284
III. Other Personalty:
A. Bank Accounts, cash $28,065
B. Farm equipment $34,200
C. Stocks and bonds $18,750
D. Ford Truck $9,950
TOTAL: $1,214,519
Defendant has an estate of approximately $25,000 in value, consisting of a 401-k plan and some savings. In addition, it appears that she has a defined benefit pension plan at her place of employment, although neither party introduced any evidence as to the terms of payment or present value of that pension. Both parties own a functioning vehicle with little to no debt. There are virtually no jointly-owned assets.
Plaintiff has always been a hard worker and a careful investor. The personal assets listed above are largely the fruit of his many years of employment at Electric Boat, and the remaining proceeds of sale of a farm he had started while still in his teens and sold shortly after the nuptials. His career at Electric Boat began some twelve years prior to the marriage, when he was about twenty-seven years old. It ended thirty-six years later in 2004, when he retired following an injury on the job. He received a workers' compensation award as a result of that injury and purchased the Sun Annuity. Since his pension from Electric Boat is a defined benefit pension which is now in pay status, neither party provided the court with an appraisal of its present value. Its monthly payments to him have been disclosed and their existence has been taken into account in formulating the orders entered below.
Mr. Walter has benefitted, also, from the industriousness and good fortune of his parents. The bulk of the real estate listed above came from them via inheritance or gift. The first pieces he acquired were the two on Dennison Hill Road which he purchased with his mother in 1972. While he was going through his first divorce in 1977, he conveyed his interest in the larger parcel to his mother, candidly admitting that his motive was to keep it out of his estate at the time of the court proceedings. In 1979, when he was once again a single man, his mother reconveyed to him the title to that parcel. They jointly owned the smaller parcel until, apparently, the mother's death in 2006. The value of the small parcel indicated above was based by the appraiser on the assumption that the parcel is landlocked. The court notes that the two parcels are abutting, and that plaintiff's full legal ownership of both parcels thus enables him to make the smaller parcel accessible if he chooses to do so. The appraisal, therefore, must be viewed as conservative.
Plaintiff's mother gifted him the lot at 82 Boombridge Road, shortly after the marriage but evidently not as a wedding gift. On acquisition, the parcel was unimproved. Mr. Walter subsequently took out a mortgage to finance the building of a home that was the marital residence until the parties separated in November of 2008, and the home has been occupied since by defendant. The mortgage has been paid and released.
The life estate interest which he possesses in the remaining two properties came to him by virtue of his mother's last will and testament. He argues that these interests should not be valued or distributed by the court, considering their source. He ignores the directive of Krafick v. Krafick, 234 Conn. 783 (1995), that "[t]here are three stages of analysis regarding the equitable distribution of each resource; first, whether the resource is property within Section 46b-81 to be equitably 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"; 234 Conn. 783, CT Page 14783 792-93. The recent decision of Mickey v. Mickey, 292 Conn. 597 (2009), instructs us that the possession by a party to a dissolution action of a present interest in a specific asset makes that asset includible within the category of assets that must be weighed and distributed by the trial court, and by this principle these assets are indubitably within the jurisdiction of this court.
Defendant presented expert testimony to value these split interests. Briefly, she began by establishing via a real estate appraisal the fair market value of each parcel. Both appraisals utilized exclusively the comparable sales method of valuation. Next, through the testimony of an actuary, she apportioned the appraised value between the life tenant and the remainderman (who happens to be Mr. Walter's son). This two-step process is the method made mandatory by the Internal Revenue Service for evaluating life estates in the context of estate administration. By that analysis, plaintiff's interest in the raw land at Boombridge Road is worth $113,000, and in the house and lot at Clark's Fall Road $100,000 (both rounded).
"The Use of Estate Planning Precedents to Evaluate Marital Property," Section 24.08 in Skoloff, et al., Valuation and Distribution of Marital Property (2009).
Recognition and valuation of these two assets, however, does not necessarily require that they be distributed by the same formula as might be warranted with respect to other of the parties' assets. As with all property, the distribution of these life interests must be made in light of a balancing of all the statutory factors. The court believes that a different weight should be accorded to these two life estate interests in the overall distribution of assets, because, first, an interest in a life estate is not readily made liquid; sale of the asset depends upon the consent of the remainderman who is not a party to this action and whose desires to keep or alienate the properties can only be guessed at; and, secondly, the appraisal of the Clark's Fall Road property did not utilize the income approach to value, even though it is clear that this is an income-producing property and thus the income approach to valuation might have been more accurate. As to both parcels, the court is also impressed that these interests arose via a family inheritance shortly before the breakdown of this marriage, and resulted from no activity on the part of either party. As to the income-producing property, the court has factored the income from this piece in fashioning its alimony award and thus will not double count the asset by including its capital value as remaining available for distribution.
Plaintiff argues with great conviction that the reason this marriage broke down is adultery on his wife's part. He maintains that defendant has been having an affair with their brother-in-law, the husband of defendant's sister, and on account of this behavior demands that this court ascribe to her the fault for the marital breakdown. In Turgeon v. Turgeon, 190 Conn. 269 (1983), the Connecticut Supreme Court held:
Adultery as a ground for dissolution under General Statutes § 46b-40 requires proof that the other spouse has engaged in extramarital sexual relations. Brodsky v. Brodsky, 153 Conn. 299, 300, 216 A.2d 180 (1966). Although, because of their clandestine nature, adulterous acts are usually proved by circumstantial evidence; Zeiner v. Zeiner, 120 Conn. 161, 165, 179 A. 644 (1935); the circumstances must be such as to lead the guarded discretion of a reasonable and just person to the conclusion of guilt. Brodsky v. Brodsky, supra, 301; Zeiner v. Zeiner, supra; Neff v. Neff, 96 Conn. 273, 275, 114 A. 126 (1921). The adulterous relationship must be established by a fair preponderance of the evidence. Brodsky v. Brodsky, supra, 301. "[I]n weighing the evidence of adultery, the court should exercise great care to see that it is not imposed upon through the intense interest of the parties to color the facts; it should not see evil where the circumstances may reasonably lend themselves to an innocent interpretation, nor, on the other hand, should it refuse to reach that conclusion which the sound and unprejudiced judgment should lead to." Neff v. Neff, supra, 276. Adultery will not be inferred from circumstantial evidence unless there is both an opportunity and an adulterous disposition. Eberhard v. Eberhard, 4 N.J. 535, 73 A.2d 554 (1950); 24 Am.Jur.2d, Divorce and Separation § 393; Clark, Domestic Relations § 12.3, p. 330. Moreover, the existence of both the opportunity and the inclination without more does not necessarily compel a conclusion that adultery has occurred. See Antonata v. Antonata, 85 Conn. 390, 393, 82 A. 967 (1912).
190 Conn. 269, 278-79
The evidence plaintiff offered is that in 2006 he experienced prostate problems, which led him "to believe that she would fool around." He supplied no objective indicia for this belief, until sometime in November of 2007 he followed her car to the brother-in-law's home around lunchtime, saw her enter the house and emerge about an hour later. That evening he confronted her, eliciting not a confession or apology but an outraged denial on her part. They stopped speaking to each other, then fought, and separated shortly thereafter. To the date of trial they have not resumed any dialogue. Both defendant and the brother-in-law testified that no sexual activity between them had transpired at this or any other time.
Faced with such scant circumstantial evidence, and in light of the credible denials made by each of the accused principals, this court finds no fault on defendant's part for the breakdown of this marriage. Plaintiff has acted as his own Iago, convincing only himself of his wife's infidelity and demonstrating that "trifles light as air are to the jealous confirmations strong as proofs of holy writ."
Shakespeare, Othello, Act III, Scene 3.
The court commends both counsel for having represented their clients zealously and competently, without abandoning either candor to the court or respect for their adversary or for the opposing party.
In light of all the foregoing, it is hereby ORDERED:
1) The marriage is dissolved on the basis of irretrievable breakdown.
2) By qualified domestic relations order plaintiff shall convey, to an individual retirement account defendant has created, the entire balance of the traditional IRA he maintains with ING USA Annuity and Life Insurance Company and which bears account number C158772-OW, together with all rights to the income from such account and the privilege of designating a postmortem beneficiary of any capital which remains undistributed upon her death.
3) Plaintiff shall pay to defendant an additional property settlement of $300,000, on the following schedule:
a) $25,000 by September 30;
b) $275,000 in the form of a promissory note, with annual interest of four percent (4%), providing for equal monthly payments of principal and interest amortized over a period of ten years commencing November 1, 2009, and ending October 1, 2019. The note shall be secured by a first mortgage lien on the premises located at 82 Boombridge Road and on the two parcels of land located at Dennison Road. The note and mortgage shall include provisions for payment by plaintiff of real estate taxes and municipal assessments upon the mortgaged properties, for maintenance of insurance upon them with defendant named as an additional insured, and for payment of defendant's attorney fees and costs in the event of default of payment. There shall be no penalty for prepayment.
4) Plaintiff may retain all his interest in his Electric Boat retirement, his remaining ING Annuity and SunAmerica IRA, his stocks, bonds, bank accounts, and remaining personal property, except for those items which he shall allow defendant to remove from the marital residence and which are listed in an Agreement of the parties marked "Court's Exhibit #1," a copy of which is attached to this memorandum.
5) Plaintiff may retain as his all interest in the five parcels of land listed above, subject only to the mortgage described in paragraph 3. Defendant shall vacate the Boombridge Road residence not later than October 31. As long as she remains in occupancy, she shall be responsible for payment of all utilities on the property and shall not commit any waste thereof.
6) Defendant may retain the personal assets listed on her financial affidavit, including her interest in her retirement account at Westerly Hospital.
7) Plaintiff shall pay to defendant as periodic alimony the sum of $150 weekly until the death of either party, defendant's remarriage or cohabitation as defined by § 46b-86(b), or September 1, 2019, whichever first occurs. This award is otherwise nonmodifiable as to term or amount.
8) Counsel for the plaintiff shall prepare the judgment file and the documents needed to effectuate the provisions of paragraph 2, and counsel for the defendant shall prepare the documents needed to effectuate the provisions of paragraph 3. Plaintiff shall be responsible for recording fees.