Opinion
No. FA 98-0165911S
April 23, 2003
MEMORANDUM OF DECISION
This decision dissolves the sixteen-year marriage of Kathleen and David Wasson — more than four years, 409 docket entries, at least two contested pendente lite hearings, and one interlocutory appeal after the plaintiff filed this action. Although agreeing that their three minor children will live primarily with the plaintiff, the parties here disagree about whether the court should order joint or sole custody, how much time the children should spend with the defendant, the amount and duration of alimony, and disposition of individual and jointly-held assets. During the long history of this case, the parties have disagreed about which schools the children should attend, the children's vacation schedules and recreational activities, and a myriad of other matters.
The Judicial District of Stamford/Norwalk at Stamford referred this fully-contested case to the Regional Family Trial Docket for trial, held on fourteen days from May 2002 until January 2003. Each party testified at trial, and the court also heard testimony from the following other individuals:
Dr. John Collins, Ph.D., a psychologist who conducted the court-ordered custody evaluation and prepared a written report dated October 9, 2001;
Dr. Carol Swenson, Ph.D., a psychologist appointed in February 2002 by agreement of the parties to serve as guardian ad litem ("GAL");
Gabriela Re, employed by the defendant as a nanny since April 2001;
Stuart Brownley, Douglas Gill, and Jim Stynes, all of whom were business colleagues and are social friends of the defendant;
Ford Gardner and Steve Baumann, both acquaintances of plaintiff and good friends of the defendant;
James T. Sullivan, the plaintiff's father;
Dorothy Wasson, Martha W. Magoon, Paul Wasson, and Christine Wasson, the defendant's mother, sister, brother, and sister-in-law; and
Deposition testimony of John A. Straus, a former business supervisor of the defendant, and Kathleen Bartulli, a friend many years ago of both parties.
Each party and counsel for the minor child also introduced into evidence exhibits that together fill six three-ring binders.
The court has observed the demeanor of the parties and witnesses 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. The court has carefully considered the statutory criteria for dissolving a marriage and entering orders regarding custody, visitation, child support, alimony, orders of life and health insurance and payment of the children's health expenditures, equitable distribution of property, and the award of counsel fees.
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 first for each party. One party has resided in Connecticut continually for more than one year prior to the bringing of this action. The parties were married in Winnetka, Illinois, on July 28, 1984. They have three minor children who are legal issue of the marriage: Connor, born on May 10, 1992; Campbell, born on November 8, 1994; and Avery, born on February 2, 1998. No other minor children have been born to the wife since the date of the marriage. The parties have not been recipients of state or municipal assistance. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation.
II. THE PARTIES
The plaintiff, Kathleen Wasson, is forty-one years old and in good health. She graduated in 1983 from Northwestern University with a degree in political science. She met the defendant while she was still a college student, but after he had graduated. After the parties married and moved to Boston in 1984, Ms. Wasson supported herself and the defendant by working as a sales representative for two television stations while Mr. Wasson attended Harvard Business School. From 1986 to 1992, she then worked in New York City as a sales representative for MMT Sales after the parties moved there for Mr. Wasson to take a job with Morgan Stanley. By 1992, she was earning $70,000 a year, but that year, by agreement of the parties, she stopped working after their first child was born.
Since then she has stayed home, caring for the children, enjoying recreational and leisure activities such as tennis or socializing with friends, and participating in civic and charitable functions. In the mid-nineties, she briefly, and on a limited basis, ran a decorating business in which she helped some friends decorate their homes. She is employable and with the third child ready to enter school next fall will be able to re-enter the job market soon. Her prior education, employment and income all show that she has an earning capacity of at least $70,000 a year, although probably not immediately. Since she has not worked for several years, has no references from recent employers and may lack job contacts, it will probably take her a period of time to find employment commensurate with her education and abilities and at her earning capacity.
The defendant, David Wasson, is forty-two years old. He had back and other physical ailments in the mid and late 1990s, but surgery and a regimen of physical exercise have remedied those problems. After graduating with a B. A. from Northwestern University in economics and cultural history, he worked at Arthur Anderson until admitted to Harvard Business School in 1984. While in business school, he worked long hours and spent little time with his wife, a pattern that continued after he graduated with an MBA and began working at Morgan Stanley in New York City. His many hours of hard work brought success at Morgan Stanley, where he became a managing director in 1997. From 1996 through 1999, he earned between $1.4 million and $1.57 million a year.
After the parties separated in 1998, however, the quality of the defendant's work at Morgan Stanley deteriorated significantly, and his continued employment at Morgan Stanley came into jeopardy. In April 2001, having been demoted twice at Morgan Stanley, and justifiably worried about his income prospects and job longevity there, the defendant left his job there and went to work for a start-up financial consulting firm, Aetos, Inc., where he has earned $250,000 a year since then. His net, after-tax income on that income is slightly less than $150,000 per year.
From the earliest days of this marriage, both parties were unhappy. The plaintiff was unhappy that the defendant spent little time with her. The defendant's long work hours in business school and later at Morgan Stanley and his disinterest in intimacy left her feeling rejected and unloved. Over time, she became increasingly resentful of and angry with the defendant. Ms. Wasson nonetheless tried to maintain a relationship in which her role was to care for the children, manage the family's home life, and provide support and encouragement to Mr. Wasson. By 1995, the parties were living in an affluent private, gated community in Greenwich, near a country club and the water, sending their oldest child to private school, and had two full-time domestic staff. The plaintiff enjoyed the surroundings, physical comforts, and leisurely lifestyle that the defendant's increasing success afforded the children and her.
The defendant, on the other hand, felt that his wife did not understand how difficult the academic demands were at Harvard Business School or appreciate the stress that the work load and competition with his classmates imposed on him. He was deeply hurt that she did not attend all of his Harvard graduation ceremonies. After he began working at Morgan Stanley, he continued to feel underappreciated by his wife. He came to believe that she had married him only for his earning capacity and began to resent her.
By the late 1990s, the defendant was feeling tired and exhausted all the time. His back problems were worsening. To cope with his mental fatigue and physical ailments, in 1997 Mr. Wasson, who had been an all-American golfer while in high school, began running, swimming, bicycling, and working out regularly. The next year, he had an affair with a twenty-six-year-old woman he met at a local gym. When the plaintiff learned of the affair, she felt betrayed and abandoned. For Kathleen Wasson, her marriage to David Wasson ended that moment. She locked Mr. Wasson out of the house that very night, and he has not lived there since.
After being ejected from the family home, Mr. Wasson continued to pay for the expenses of his wife and children for the next year and a half as he always had, by depositing his income into the joint checking account from which both parties could withdraw funds to meet their needs. On March 6, 2000, the court, Harrigan, J., ordered that the defendant pay the plaintiff unallocated support of $40,000 per month. Mr. Wasson complied with that order for most of the next two years, until the end of 2001, when he fell into arrears of $90,000, for which the court, Novack, J., held him in contempt. The defendant paid the arrearage amount, but as of September 2002, he again stopped paying the court-ordered support amount, this time, however, also requesting a modification of the support amount on the basis of substantially changed circumstances. The parties have agreed that this court would decide that motion from defendant, and the plaintiff's related motion for contempt, in conjunction with its decision here.
III. THE CHILDREN
The parties here dispute the custody and visitation orders, which by law the court must determine based on the best interests of the child. General Statutes § 46b-56 (b). "It is well settled in this state that, in deciding custody or visitation issues, a court must always be guided by what is in the best interests of the child." Ireland v. Ireland, 246 Conn. 413, 419, 717 A.2d 676 (1998). See also Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997); Hall v. Hall, 186 Conn. 118, 121, 438 A.2d 441 (1982); and Stewart v. Stewart, 177 Conn. 491, 408, 418 A.2d 62 (1979). As this court has noted before, "[t]he best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare." In re Diane W., Superior Court for juvenile matters, child protection session at Middletown (December 21, 2002). The courts have found many factors to affect a child's "best interest," including a child's interest "in sustained growth, development, well-being, and in the continuity and stability of [his] environment"; Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985). See e.g. Seymour v. Seymour, 180 Conn. 705, 710ff, 433 A.2d 1005 (1980); Janik v. Janik, 61 Conn. App. 175, 181, 763 A.2d 65 (2000), cert. den. 255 Conn. 940, 768 A.2d 949 (2001); Rudolewicz v. Rudolewicz, 12 CLT No. 39, p. 664, Superior Court, judicial district of Hartford-New Britain (October 6, 1986, Arena, J.).
A. DECISION MAKING
Although the parties share joint custody pendente lite, since separating they have disagreed on countless matters regarding their children — the children's extracurricular activities, which school the children would attend, which parent would retain membership in the local country club (which allows only one of separating parents to remain a member), school break or vacation activities and schedules, the children's clothing, haircuts, and recreational activities, the conditions for Connor attending therapy both agree he needs, and many other matters. Both parties acknowledge that they have been unable to agree, and each holds the other responsible.
The court heard extensive testimony from each party on the various conflicts, as well as analysis of those incidents and the causes of the conflict from the GAL and court-appointed psychologist, and has also read voluminous e-mail messages between the parties documenting much of the conflict. The blame for their inability to work together rests on both parties. Sometimes they have disagreed about a specific decision — should Campbell be allowed to ride horses or the children go jetskiing; should the children attend Stamwich School; if only one parent could retain membership in the Belle Haven Country Club, which one? Sometimes one party has acted pettily toward the other in a way that was not in their children's best interest — the plaintiff refusing to allow Campbell to take her new eyeglasses when going on a family vacation to Michigan with the defendant; the defendant allowing Connor to get his hair cut into a "buzz" when plaintiff had told the child she did not want him wearing such a hairstyle. Often the dispute between these parties has arisen from their inability to agree on scheduling matters — when the children would return to their mother, for example, after going trick-or-treating with their father on Halloween, or when Connor would return to his mother from a weekend trip with his father to Cleveland. The court concurs with the conclusion of Dr. Collins that these parties have been "largely unable to communicate effectively or work together to make decisions in the best interests of their children." (Pl.'s ex. 3 at page two.)
The evidence makes clear that despite mutual blame, the primary responsibility for the conflict on parenting issues between the parties falls on Mr. Wasson. On numerous occasions Ms. Wasson told him that the parties needed to make a particular decision regarding the children and solicited his input; but too often the defendant did not respond adequately in a timely manner. Sometimes he would provide a partial response, other times say he was unable to respond immediately, and yet other times not provide any immediate response. The result was unnecessary delay in such decisions and, sometimes, no decision at all. The court finds credible the testimony of Dr. Collins and the GAL, Dr. Swenson, that some dynamic within Mr. Wasson has prevented him from coming to agreement. While it may not be unusual for parents to disagree about decisions affecting their children, the number and intensity of such disagreements here and these parties' inability to resolve those disagreements amicably show little prospect for their being able to make decisions cooperatively in the future.
When asked to explain the degree of conflict between the parties, Dr. Collins testified that "there's a potentiating dynamic which exists primarily within Mr. Wasson that continues to make — continues to stoke it. I don't think he knows how to let it go. I don't think he knows how to let it end." (Trans. 7/2/02 at 115.) The GAL, Dr. Swenson, testified that Mr. Wasson has "a psychological investment in not making a commitment . . . [or] decision . . . Making a decision seems to be for him to be sort of the end of something and he doesn't want to get to the end of it." (Trans. 7/3/02 at 30.)
The conflict between the parties during the pendente lite period has negatively affected all three children. All three have witnessed the hostility between their parents, an experience that has been very difficult for the children and upset them greatly. They are afraid to make things worse between their parents and do not like having to do something that will seem to choose sides. As Dr. Collins testified, they walk on eggshells much of the time out of fear of making things worse.
The oldest child, Connor, now almost eleven, has been the most negatively affected. He has suffered for most of the four years, cries easily, often has bad dreams, is terrified of alienating either parent, worries that he is the cause of their separation, and has begun to show emotional and behavioral problems at home and school. He needs therapy to help him address these problems before they become worse; but disagreement between the parties has prevented him from getting the help he so desperately needs.
The second child, Campbell, who is now eight, escaped psychological or behavioral ramifications of the strife between her parents for most of the four years but is now beginning to suffer from its effects. The youngest child, Avery, born only months before the parties separated, has never known the family as intact, and is, for the most part, doing all right now. All three children are at significant risk of long-term psychological and behavioral harm if the rancor between their parents does not diminish.
The plaintiff has requested sole custody of the children. She claims that the repeated inability of the parties to work successfully together since she filed for divorce is proof that they cannot cooperate sufficiently to justify an order of joint custody. The defendant argues, however, that the parties need to learn how to work together, for their children's best interest, and that the court should order such cooperation.
On this question of custody and parenting time, the court has had the benefit not only of the obviously sincere testimony of each party and the skillful advocacy of their trial counsel, but also thoughtful counsel from the attorney for the minor children ("AMC") and the recommendations of the court-appointed custody evaluator and the guardian ad litem. Dr. Collins and the GAL concur that each party is a competent parent but that Mr. and Ms. Wasson have been unable to work together or make joint decisions cooperatively. They agree that although Ms. Wasson has sometimes put her own needs over those of the children, she has, for the most part, acted in the children's best interest, while Mr. Wasson, driven by clinically significant psychological issues, though usually acting in his children's best interest, has too often subordinated the children's needs and best interests to his own needs and psychological urges. They also agree that the litigation so far between the parties has harmed the children, that further litigation would harm them even more, and that it is in the children's best interest to protect and insulate them in the future, as much as possible, from further litigation between their parents. The court concurs with all of these conclusions and so finds.
From these facts, the GAL and AMC urge sole custody to the plaintiff. Dr. Collins draws from his interviews and assessments of the children, however, a somewhat different conclusion about the parenting orders that would be best for Connor, Campbell, and Avery. He opined, credibly that, in the context of this family, these three children need to have both parents involved in making decisions about them. The children need to believe and know that their father is a significant decision-maker about their lives. All three children have experienced the conflict between their parents, and Dr. Collins assumes, credibly and reliably, that the children will learn about the court's custody orders. If the children were to find out, as they surely would, that only their mother has decision-making authority, they would perceive their father as having been relegated to an inferior status and they themselves would suffer as a result. Since these three children need to see both of their parents as valued and would be harmed by seeing one of them in an inferior status, Dr. Collins concluded that a custodial order that precludes Mr. Wasson from participating in parental decision-making is not in their best interest.
Dr. Collins recommended that on major decisions — in which category he included such issues as the children's education, their day-to-day activities, and medical and psychological treatment, the parties be required to consult with each other but that if they were unable to reach an agreement, the plaintiff should have final decision-making authority. On what he describes as decisions of lesser import, he proposed that, if the parties cannot agree, a neutral third party make the final decision, without recourse to judicial remedies. He described such lesser issues as questions involving scheduling and like minor issues. He would designate such an order as "joint custody." He also testified, however, if the court cannot enter an order of joint custody vesting final authority in the plaintiff to make major decisions and in a non-judicial third party to make minor decisions, or if such an order would permit either party to contest judicially the final decisions of an independent third party or the final decision-making parent, he would instead recommend sole custody to the mother.
Section 46b-56 of the General Statutes provides, in relevant part that "[s]ubject to the provisions of section 46b-56a, the court may assign the custody of any child to be parents jointly, to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable." (Emphasis added.) Perhaps the court can, under § 46b-56, enter an order vesting certain custodial decisions in a third party, although the recent case of Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), certainly casts doubt on that prospect. An order precluding either party from seeking relief from the Superior Court, however, would be of dubious validity; see, e.g., Neway v. Bogner, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FA97-0348109 S, 33 Conn.L.Rptr. No. 18, 649 (Dewey, J., January 3, 2003) (holding that parties may not contract away, in a separation agreement, the power of either to seek relief against noncompliance with court orders).
Section 46b-56a (a) of the General Statutes defines "joint custody" as meaning "an order . . . providing for joint decision-making by the parents . . ." There is no definitive appellate guidance on whether an order of joint custody may, when parents are unable to make a decision jointly, vest final decision-making authority in one party. See, e.g., Tabackman v. Tabackman, 25 Conn. App. 366, 368 (1991) ("We might determine that the award of custody in this case is the functional equivalent of an award of sole custody because the plaintiff has ultimate authority in all decisions regarding the children's welfare. We reject this argument, however, because joint custody is the trial court's own determination of the meaning of its order"), citing Emerick v. Emerick 5 Conn. App. 649, 663, fn. 9, 502 A.2d 933 (1985) ("The difference between a sole custodian and a joint legal custodian is that the sole custodian has the ultimate authority to make all decisions regarding a child's welfare, such as education, religious instruction and medical care whereas a joint legal custodian shares the responsibility for those decisions"). Numerous trial courts have entered such orders.
See, e.g., Ford v. Ford, Superior Court, Judicial District of New Haven at New Haven, Docket No. FA 00-0440581 S (August 22, 2001) (Domnarski, J.); Kelley v. Kelley, Superior Court, Judicial District of Litchfield at Regional Family Trial, Docket No. FA 93-0062122 S (November 17, 2000) (Pickard, J.); Landock v. Landock, Superior Court, Judicial District of Ansonia/Milford at Milford, Docket No. FA 99-0065074S (June 29, 1999) (Grogins, J.).
As the court concluded in Jones v. Jones, Superior Court, Regional Family Trial Docket, Judicial District of Litchfield, Docket No. FA99-0078925 (March 13, 2000) (Munro, J.), "such an order . . . requires the court to first find that the parties are capable of reasoned communication . . . regarding important custodial decisions." The court-appointed evaluators and counsel for the minor child in that case had recommended joint legal custody with final decision-making authority vested in the mother when the parties could not agree. The evidence there, however, showed "no ability evident or demonstrated of these parents to come to agreement on any important developmental issues" regarding their child. The court thus rejected such a recommendation and ordered sole custody.
The emails between the parties here, and their own testimony, do not show intemperateness, verbal or emotional abuse, or an inability to communicate. In contrast to the Jones case, where the court found a lack of reasoned communication, there is here, if anything, plenty of communication, but not enough joint decision-making. In the language of the Jones decision, such communication has not been "effective." As the court stated in Christolini v. Christolini, Superior Court, Judicial District of Waterbury, Regional Family Trial Docket at Middletown, Docket No. FA98-0145598 (April 12, 2000) (Munro, J.), "[j]oint custody requires positive communication between parents; an ability not only to speak but to listen to the other parent and to consider the position of the other parent in terms of the needs of the children." (Emphasis added.) Far too often here, the parties have engaged in extensive dialogue but been unable to arrive at a mutually agreeable decision. Disagreement, impasse, unilateral action, or inaction has been the result.
Children need a sense of finality and certainty in their lives. They need to know who will take care of them, who will make the major decisions affecting them, and that such decisions will be made in a way that will serve their best interest. As much as the children need to see their father involved in their lives, they need even more to have decisions affecting them made in a timely manner. These parents are not, at present, able to make parenting decisions together. At trial Mr. Wasson urged joint custody because the parties ought to be able to make decisions jointly. Far too often in this case, however, that hope has been entirely illusory, largely because of his own doing. It is not in the best interest of any child for the court to enter orders that it knows their parents are unwilling or unable to follow. Court orders are not hortative, but mandatory, subjecting non-complying parties to sanctions that can range from fines to incarceration.
Dr. Collins and the GAL agreed, and this court concurs, that if one parent must have ultimate decisional authority, that parent should be the plaintiff. During this litigation, most of her decisions for the children have been in their best interest, whereas the defendant has too often let his own needs, rather than those of the children, become paramount. When the parties cannot agree after consultation, the need for a parental decision made in the children's best interest dictates that the plaintiff have final decision-making authority.
The court concludes that it is in the best interest of the minor children to fashion parenting orders that give Mr. Wasson a meaningful opportunity to participate in decision-making but that also ensure reasonably prompt and final decisions. Moreover, since the children very much need to be protected from further litigation in this proceeding, the court must fashion orders that provide as much finality as possible to decisions that the plaintiff makes when there is no agreement between the parties. In the factual context of this case, it is in the children's best interest to award sole custody to the plaintiff, but require her to seek input on decisions from the defendant.
Before Ms. Wasson makes any major decisions, because it is in the children's best interest for her to do so, she must consult with the defendant. Consulting means more than merely notifying him of an upcoming decision and asking his reaction to her planned decision, but instead requires her to seek a genuine exchange of ideas and opinions before a decision is made. Such consultation will give the children an opportunity to see that their father still has a significant role in making decisions about their lives. Should the defendant over time show himself able to work effectively with plaintiff and cooperate effectively with her in the decision-making process, that would eliminate the present basis for an order of sole custody.
The evidence here has shown that the defendant often did not respond in a timely manner to efforts at joint decision-making undertaken during the pendite lite period by the plaintiff. The defendant's opportunity to consult with the plaintiff cannot continue to be an occasion or means to prolong decision-making unduly. In order to facilitate decision-making in a reasonably prompt manner, the court's orders will afford defendant time to participate in that process, but plaintiff will then be able to make the final decision by herself if the parties cannot reach mutual agreement. In view of the history in this case, the court concludes that the plaintiff shall have sole discretion to decide by when a decision needs to be made. Where practicable, she should exercise that discretion to provide the defendant with sufficient advance notice of an upcoming decision for the parties to engage in reasonable dialogue about the decision.
Furthermore, since the parties have already shown their inability to agree with regard to the education of the children or therapy for them, the plaintiff may make all decisions regarding psychotherapy for the children and where the children attend elementary and secondary school. She may consult defendant on such decisions at her discretion.
B. PARENTING TIME
Throughout this litigation, Mr. Wasson has had parenting time with the children on Wednesday evenings for a few hours, and two full weekends and one day of a third weekend each month. He has requested that he continue having parenting time once mid-week and on three weekends a month but on a somewhat different schedule. He has proposed that the mid-week parenting be an overnight, that the weekends end on Monday morning, and that he have parenting time on three full weekends a month. In weeks that conclude with his weekend parenting time, he has proposed that his mid-week time be on Thursday, so that he would have continuous parenting time for three weeks a month from Thursday after school until Monday morning; on the fourth week of the month, when the plaintiff has weekend parenting time, Mr. Wasson has asked that his mid-week parenting time be from Wednesday afternoon to Thursday morning.
Ms. Wasson argues that the parties should divide the weekend time equally, since weekend parenting time is of a different quality than time during the school week. She asks that the father's parenting time end in the evening. She asserts that Thursday evening to Monday morning is too long for the children to be away from her. She further points out that Mr. Wasson's proposal would allow her to schedule ongoing activities for the children on only Mondays and Tuesdays, as the defendant would have parenting time on every other day of the week at least sometime during the month.
Dr. Collins, the GAL, and AMC all assert that weekend time should be equally divided, as does this court. They also recommended that the mid-week visit not flow directly into the weekend visit. The court also finds that it is the best interest of the children to spend the final evening of their father's parenting time on Wednesdays and Sundays overnight with him.
Dr. Collins concluded that the children need to spend more time with their father, a recommendation with which the GAL concurred. The court finds that recommendation credible and so finds. Neither made any specific recommendations on how to address that need, however. Dr. Collins, the GAL, and the plaintiff all concur that the children would benefit from some individual parenting time with the defendant. The plaintiff would accomplish this end by having three of the defendant's Wednesday parenting time sessions each month be with one child only, but the defendant reasonably objects to the loss of overall time with each child. Because of the children's need to see their father more, the court's orders will permit the defendant to have parenting time one additional evening a month with each individual child, on either Tuesday or Thursday. The orders of the court will contain the specifics of this additional parenting session.
As the defendant correctly pointed out, many of the disputes with the plaintiff during this litigation resulted from the lack of specificity in the parenting orders. The court concurs that specific orders as to the varieties of parenting time will contribute to lessening future opportunities for dispute.
The remaining parenting issue is the plaintiff's concern that the defendant sometimes has his nanny transport or care for the children rather than doing so himself. As an example, Ms. Wasson says that when Mr. Wasson picks up his children for a visitation session, Ms. Re and he arrive at plaintiff's house in separate vehicles and each drives children back to defendant's home. The court notes, however, that plaintiff has also asked others to drive the children on occasion. The court will not interfere with how Mr. Wasson transports the children as long as he does so safely and in accordance with motor vehicle and traffic laws. The import of Ms. Wasson's request here is some sort of parental right of first refusal — that before Mr. Wasson could have someone drive or care for the children, Ms. Wasson would be offered that opportunity. In view of the rancor and inability of these parties in the past to agree on child-related issues, the court finds such an arrangement would only invite further disputes between the parties and declines to enter such an order. During Mr. Wasson's parenting time, he is responsible for the children. Like any parent, when he cannot care for the children during his parenting time, it is his responsibility to arrange suitable childcare. If he wishes to offer some of his time with the children to their mother because he will be unavailable for part of his parenting time, that is his option, but not a requirement of this court.
IV. FINANCIAL ISSUES
The primary financial issues between the parties are the amount and duration of alimony, title to the marital home and disposition of equity therein, allocation of other assets, personal goods in the marital home, and counsel fees. The parties also reserved for this court the resolution of the defendant's motion to modify support pendente lite and plaintiff's motion for contempt. The court will address these issues in turn.
As our appellate courts have noted frequently in the past, financial orders in a dissolution proceeding comprise a mosaic; Smith v. Smith, 249 Conn. 265, 282-83, 752 A.2d 1023 (1999); each separate component building on and reinforcing other portions of those orders. In this case, all financial orders turn on the reasonableness of the defendant's decision to leave Morgan Stanley and the effect of that decision on the financial situation of the parties. Before this proceeding began, Mr. Wasson was earning almost $1.5 million annually, the parties were able to spend freely and virtually without restriction, and both enjoyed an affluent lifestyle. Since his new employment, Mr. Wasson is earning less than one-fifth as much. The plaintiff claims that the defendant voluntarily reduced his earnings and that the financial orders of the court should deem him to have the same earning capacity now as before. The defendant claims that his employment at Morgan Stanley was in jeopardy, his income there would have decreased, and his taking employment at Aetos was in his best financial interest.
On this issue, the court heard testimony from Mr. Wasson, two business colleagues who are also good friends, and deposition testimony from a critical former supervisor. The court finds that testimony consistent, credible, and persuasive. The quality of Mr. Wasson's work at Morgan Stanley deteriorated significantly after the parties separated, and as a result he was twice demoted. The second demotion changed his position from group leader to group member, an obvious loss of stature and potential harbinger of worse to come. Still a managing director, however, he was aware that Morgan Stanley management was considering reductions in force. Changes at the firm after a recent merger with Dean Witter and general economic conditions inside and outside the firm gave him realistic fear for his job there. After his second demotion, his compensation was based exclusively on commissions he earned; in 2000, working as a commission-based salesperson, he earned commissions of approximately $450,000. Although a senior manager, John Strauss, verbally promised him bonuses of $1.3 million for 2000 and $1 million for 2001 and he was paid the first bonus, Strauss left the firm before the 2001 bonus would be due. After discussions with other senior managers concerning his employment and income prospects, the defendant was justifiably worried about being fired and that the second bonus might not be forthcoming. Mr. Wasson was realistic in his assessment that his prospects of finding another suitable job would be much less favorable if he had to start job hunting while unemployed, and thus appropriately sought employment elsewhere while still at Morgan Stanley.
At Aetos, Mr. Wasson obtained a job similar to the one he left at Morgan Stanley, selling investment opportunities to clients. The unpredicted events of recent months, however, have affected the short-term success of the new firm. The terrorist bombings of September 11 seriously diminished the ability of the new firm to raise capital or make sales to clients. But Mr. Wasson was credible in his testimony that the firm has high potential for success, and that it now has attractive investment opportunities to market. The court therefore finds that, despite his presently reduced income, the defendant has strong potential for much greater income in the future.
When Mr. Wasson left Morgan Stanley, he gave up certain financial benefits. He lost approximately $500,000 in unvested stock options plus an additional $500,000 cash, both offered by the firm if he would sign a non-compete agreement upon leaving. His decision not to sign that agreement was reasonable, however, as such an agreement would have vitiated his ability to succeed financially in his new job. Whether he would have received the million-dollar bonus promised by John Strauss, we will never know. We will also never know whether or when he would eventually have been fired by Morgan Stanley or, if not, what his average income would have been there over the next few years. But the court finds no credible evidence that the defendant's belief that this bonus and his overall employment at Morgan Stanley were in jeopardy was unreasonable, ill-founded, or the result of sinister motives directed at the plaintiff or for the purpose of reducing his obligations to her. There is no credible evidence here that the defendant "wilfully depleted his or her earnings with a view toward denying or limiting the amount of alimony to be paid"; Schmidt v. Schmidt, 180 Conn. 184, 190, 429 A.2d 470 (1980); or "wilfully restricted his earning capacity to avoid support obligations." Bleuer v. Bleuer, 59 Conn. App. 167, 170, 755 A.2d 946 (2000).
In the defendant's new job at Aetos, he earns $20,833.33 per month gross and slightly more than $12,000 net. The reduced income is no longer sufficient to support both households in the manner to which the parties and their children have been accustomed. Mr. Wasson's net income does not even cover the total shelter expenses that the two parties listed on their last financial affidavits. The long-term effect of his dramatically reduced income will obviously have a significant impact on the life styles of both parties and their children, at least until or unless Mr. Wasson's career and his income rebound.
Rather than reduce his spending and standard of living to levels befitting a person earning $250,000 who has the obligation to support a wife and three minor children in a second household, however, Mr. Wasson continued to spend between $25,000 and $33,000 per month for his own expenses after leaving Morgan Stanley in April 2001. Such a spending level would require gross income of between $600,000 and $750,000 a year to meet his own expenses, without even considering any support obligations. Since leaving Morgan Stanley, the defendant has drawn down on assets and deferred compensation previously awarded by Morgan Stanley to pay his expenses. His overall indebtedness did not grow, his financial affidavits of March, May and November 2002 each listing liabilities of less than $100,000. By spending assets rather than using tax refunds available to him to pay expenses, Mr. Wasson reduced the amount of those other assets available for equitable distribution.
The defendant's financial affidavit of December 17, 2001, showed him incurring monthly expenses of $72,881; less $40,000 owed for monthly support, Mr. Wasson's affidavit thus claimed almost $33,000 in monthly living expenses, up from the 21,673 claimed on his March 6, 2001 financial affidavit. As of his May 23, 2002 financial affidavit, he was claiming monthly living expenses of $24,642; by November 2002, $26,114.
At defendant's present marginal tax rate (see page six of his November 2, 2002 financial affidavit) he would have to earn almost six hundred thousand dollars a year to have after-tax income of $26,000 per month, the amount of personal monthly expenses he listed on his November 2002 financial affidavit, and seven hundred fifty thousand dollars to have after-tax income of $33,000 per month, the amount of personal monthly expenses he claimed on his December 2001 financial affidavit.
The court's financial orders take into account all the relevant statutory factors for each order, the facts proven in this case, the court's ruling on the pending motions to modify and for contempt, and the previous order of the court, Novack, JTR., on January 29, 2002, that "$198,956 drawn down [by plaintiff from home equity loan] in violation of automatic orders. Division to be decided at trial."
A. MOTIONS TO MODIFY AND FOR CONTEMPT
On January 28, 2002, Mr. Wasson served Ms. Wasson with his motion to modify the pendente lite support award. After leaving Morgan Stanley, with income less than expenses, he used a substantial amount of his assets to pay for living expenses that far exceeded his net income. Under the factual circumstances here, and after considering the statutory factors for award of pendente lite support, the court does not find it appropriate to modify his pendente lite obligations to plaintiff and their children.
The defendant paid plaintiff $320,000 in 2002 support obligations through August; from September through December, he paid her an additional $68,000, for a total of $398,000. As of the end of December, he owed an arrearage for the year of $92,000. The court finds that he willfully failed to comply with the pendente lite support orders, and holds him in contempt for failing to do so.
B. PROPERTY DISTRIBUTION
"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 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?" 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 equitable distribution by the court. The court also finds that the $99,731 tax refund for 1998 referred to in plaintiff's exhibit 63 is marital property subject to equitable distribution.
With the reduction in the defendant's assets, the largest asset owned by either is the marital home at 67 Mayo Avenue in Greenwich, which the parties have stipulated to have a value of $2,825,000. With a mortgage of $926,000 and a home equity loan of $237,000 as of November 2002, the parties then had equity of $1,662,000 in the property. The plaintiff has asked the court to award title to the marital home to her, but the defendant wants the home sold and the proceeds divided equally between the parties, subject to an adjustment of approximately $200,000 because plaintiff borrowed that amount against the home equity line, for which she was held in contempt by the court.
In view of all the factors the court must consider in allocating property, including fault for the breakdown of the marriage, which the court here ascribes primarily to the defendant, the court finds it fair and equitable to allocate two-thirds of the equity in the house to the plaintiff and one-third to defendant and for them to share equally the value remaining in the defendant's stocks, options, deferred compensation, and tax refunds, subject to adjustment for the findings of contempt against both parties referred to elsewhere in this decision. Defendant's one-third share, before any adjustments, is $554,000.
It may not be feasible to effectuate such a division without sale of the marital home. Since the monthly expenses for the house almost equal the total amount of the court's first-year award of unallocated alimony and support to the plaintiff, the plaintiff would not have sufficient resources to meet all of her monthly expenses should she maintain the marital residence. Nonetheless, the court is aware of the earnest desire of the plaintiff to continue living in the marital home. Although many children can handle the disruption of changing their residencies, the court had no evidence here on what that effect would be on these children. The court will therefore provide the plaintiff a six-month period in which to transfer to the defendant his one-third share of the $1,662,000 equity in the house, subject to certain adjustments for arrearages and related expenses. If she has not done so by the last day of the sixth month following issuance of this decision, the house must be sold. In view of the pending foreclosure on the marital premises, and the need to preserve the full value of the parties' equity, the court's orders will also direct defendant, who has the most assets readily available, to take all immediate steps necessary to pay all arrearages due on the mortgage and home equity loan. Any such payments he makes will entitle him to corresponding adjustments in his share of the equity.
Plaintiff's last financial affidavit listed $10,124 in monthly shelter expenses, which included the following fixed costs: mortgage, $6,587; home equity loan, $1,036; real property taxes, $1,198; and home owner's insurance, $206.
This court's orders will provide her with unallocated alimony and support of $12,000 per month for the first year after judgment.
Even if she immediately found employment with income at the earning capacity found here, of $70,000 per year gross, she would have less than $15,000 net income per month from earnings and unallocated alimony and support. (The parties did not introduce evidence as to the current allocation of mortgage payments between principal and interest so as to allow the court to calculate accurately any mortgage interest deduction from federal taxes that plaintiff could claim for owning the house. Using the only such figures entered into evidence, for 1997 in defendant's exhibit W, however, plaintiff would have net income of approximately $14,000 per month. Even if all her mortgage, home equity and real property tax payments were deductible, she would have net income of approximately $14,700 per month.)
The plaintiff's last financial affidavit listed pendente lite support as her only source of income, bank accounts totaling slightly more than $25,000, cash on hand of $16,000, and personal property worth slightly more than $100,000. The defendant's arrearage in his pendente lite support obligation therefore may reasonably be inferred to have affected her continuing ability to meet all her monthly expenses, although it is possible that she may have liquidated resources to do so. From this inference the court also infers that there may at present be arrearages owing on the first mortgage and home equity loan. The court takes judicial notice that a foreclosure action brought by the first mortgagee is currently pending against both parties in the Judicial District of Stamford, Citimortgage v. David and Kathleen Wasson, docket number CV03-0193428-S. The plaintiff would have had sufficient funds to meet the mortgage and home equity obligations if the defendant had remained current in his pendente lite support. The court's orders will make plaintiff responsible for paying any arrearage in either mortgage obligation, but defendant responsible for all late charges, court costs or counsel fees incurred as the result of any late or non-payment of those obligations by plaintiff.
The court takes judicial notice that a foreclosure sale may not net the full fair market value of real property. See, e.g., New England Savings Bank v. Lopez, 227 Conn. 270, 271ff, 630 A.2d 1010 (1993) (noting that and explaining why "the usual notion of fair market value is inconsistent with the notion of a foreclosure sale").
The court awards to plaintiff the jewelry and furs listed on her financial affidavit and the Kathleen Wasson Irrevocable Trust from her father. The court orders the parties to divide the household furnishings in the marital home by themselves, and retains jurisdiction over this question if they cannot agree how to do so.
C. ALIMONY
The defendant has much better income prospects than the plaintiff. The plaintiff's prior education, employment and income all show that she has an earning capacity of at least $70,000 a year. She is employable and with the third child ready to enter school next fall will be able to re-enter the job market soon. Her overall income earning capacity is less than that of the defendant, however. Mr. Wasson's education, experience, and job skills may soon provide him with a more prosperous standard of living. The plaintiff, on the other hand, has been out of the work force for more than ten years, and may never earn as much as the defendant can earn. Her own earnings are unlikely to support her and the children in the manner to which they became accustomed during the marriage. It was the defendant's decision to betray the marital relationship that placed plaintiff in this less advantageous financial position.
The defendant has the obvious potential to regain his former income levels. His own spending habits since leaving Morgan Stanley show his belief that his income will not remain at its present level for long. His lavish spending habits since leaving also deprived the marital estate of resources that could have been equitably distributed upon dissolution. Although the defendant is obviously intelligent and hard working, the success he enjoyed in business school and at Morgan Stanley while married was due in part to the role in the marriage played by Ms. Wasson. She supported the defendant financially while he was in business school. The defendant worked long, grueling hours in business school and at Morgan Stanley and felt constant stress from the pressures and competitive atmosphere in both settings. It was the plaintiff's role in the marriage to provide him with support and succor to help him cope with the demands and stresses of business school and investment banking. By assuming primary responsibilities for maintaining the home and raising the children the defendant's long hour work weeks would not have otherwise been possible — she also freed him from domestic obligations that would have required him to divert time and attention from his work at Morgan Stanley. As the defendant's income rises with the increasing success of his new business venture, the plaintiff and the parties' minor children should share in his success.
Taking into consideration all the statutory factors, the court awards unallocated alimony and support for fifteen years. Since plaintiff's initial earnings may not reach her earning capacity, the court has phased down the unallocated alimony and support for the first four years. For the first year after this decree, defendant shall pay unallocated alimony and support in the amount of $12,000 per month; for the next year, $11,000 per month; for the third year $10,000 per month; and for the fourth year, $9,000 per month. After the fourth year, defendant shall pay unallocated alimony of $8,000 per month. Additional unallocated alimony and support shall include one-third of any additional income or compensation for past services that the defendant receives or is awarded above $250,000 per year. The term "income or compensation for past services" means any payments made to Mr. Wasson for services already rendered by the date of payment, as opposed to payments in contemplation of future services.
D. CHILD SUPPORT
The parties' combined net weekly income here exceeds $2,500, the amount above which the child support guidelines no longer provide specific presumptive support amounts. The Preamble to the Child Support and Arrearage Guidelines states that "above the highest income level in the schedule, courts remain free to fashion appropriate child support awards on a case-by-case basis, provided the amount of support proscribed at the $2,500 level is presumed to be the minimum that should be ordered." Here, for a family of three minor children, the minimum prescribed support is $684 per week for combined net incomes of $2,500 per week. A portion of this court's award of unallocated support is attributable to child support in amounts exceeding the required minimum. See Kolkmeyer v. Kolkmeyer, 18 Conn. App. 336, 341, 558 A.2d 254 (1989); Matles v. Matles, 8 Conn. App. 76, 511 A.2d 363 (1986).
E. COUNSEL FEES
The plaintiff has requested that defendant make a lump sum payment toward her debts and counsel fees, while the defendant requests that each party pay its own counsel fees. They concur that they should split the fees for the GAL and AMC. Pursuant to General Statutes § 46b-62, the court has authority to order payment of counsel fees after consideration of "their respective abilities and the criteria set forth in section 46b-82." Moreover, the court must take care that its determination of this question does not substantially undermine its other financial orders.
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn. App. 412, 418, 547 A.2d 922 (1988).
Taking into consideration all the statutory factors mandated by § 46b-62, as elucidated by the Appellate Court in Miller v. Miller, the court awards no counsel fees to either party.
Neither party contests the reasonableness of the fees sought by the GAL and AMC. The court concurs with the request of each party that they divide equally the fees of the GAL and AMC. Each party shall receive credit for payments each has made.
V. FINAL ORDERS
After considering all the statutory factors set forth in General Statutes § 46b-56 as to custody and visitation, § 46b-81 (c) as to equitable distribution of property, § 46b-82 as to alimony, § 46b-84 as to support of a minor child, § 46b-215a-1 et seq., Regs. Conn. State Agencies as to child support, and §§ 46b-62 and 46b-87 as to counsel fees, together with applicable case law and the evidence presented here, the court hereby enters the following orders. These orders shall be considered interim post-judgment orders in the event of an appeal by either party.
A. DISSOLUTION OF MARRIAGE
The marriage of the parties, having broken down irretrievably, is hereby dissolved.
B. PARENTING ORDERS
1. Custody Order: The plaintiff shall have primary physical and sole legal custody of the parties' minor children.
2. Decision Making: Where practicable, before the plaintiff makes any major decision about the children, she shall consult with the defendant. Major decisions shall mean issues affecting the children's welfare, medical care, ongoing activities, education, development, and, as they get older, matters regarding automobiles, driving, and employment. She shall notify defendant of upcoming major decisions in a timely manner, inform him when she, in her sole discretion, believes the decision needs to be made, and shall seek his input on that decision. However, since the parties have already shown their inability to agree with regard to the education of the children or therapy for them, the plaintiff may make all decisions regarding psychotherapy for the children and where the children attend elementary and secondary school. She may consult defendant on such decisions at her discretion.
3. If the parties cannot agree on a decision by the time that plaintiff stated the decision needed to be made, then plaintiff may make the decision herself. Routine decisions, including but not limited to homework and day-to-day activities customary for youth of their age and maturity shall be made by the plaintiff, except when defendant has extended parenting time during the summer as set forth below. Whichever party is exercising parenting time will have authority to make decisions as to emergency medical, dental, or safety matters but shall immediately notify the other, orally if practicable.
4. Parenting time:
a) Transportation for parenting time: If a party's parenting time begins directly after school, that party shall pick the child up from school. Otherwise, the party whose parenting time is ending shall transport the children to the party whose parenting time is beginning, except as set forth below.
b) School-year parenting time: Before the beginning of each school semester, the parties shall confer on ongoing sports, recreational and other activities in which the children may wish to participate before any decision about those activities. The plaintiff shall schedule the children's activities to minimize conflict with the defendant's Wednesday overnight visitation. After the defendant's mid-week parenting time during the school year, he shall take the children to school the next day.
c) Father's regularly scheduled parenting time: The defendant shall have parenting time with the minor children during the week from Wednesday at 4:30 p.m. until Thursday morning; and every other weekend from Friday at 5:00 p.m. to the first day of school in the next week. The first weekend after this decision shall be plaintiff's parenting time. The parties' weekend parenting time is subject to the paragraph below concerning holiday and extended weekend vacations during the school year.
d) Father's individual parenting time: The defendant shall also have individual parenting time with each child once a month on either Tuesday or Thursday from 4:30 p.m. — or at whatever later time that the particular child's previously-scheduled ongoing afternoon activity ends that day — until school the following morning. Defendant shall rotate this individual parenting time equally among all three children. He shall be responsible for all transportation to and from these individual parenting sessions. No later than the tenth day of each month, the plaintiff shall notify defendant in writing of the children's scheduled activities for the following month; she shall notify defendant of later changes to that schedule as they may occur. By the end of the fifteenth day of each month, the defendant shall inform the plaintiff in writing of which days he will exercise his individual parenting with each child in the following month. If defendant does not so notify plaintiff, he shall forfeit individual parenting time for that month; any delay in the plaintiff's providing him with the schedule of activities will not delay Mr. Wasson's obligation to notify Ms. Wasson of the dates he will see the children for his individual parenting nights. Defendant shall ensure that the children are able to continue participating in previously scheduled ongoing activities occurring on these days, and shall arrange or provide all necessary transportation to and from such activities for the child with whom he has parenting time that day.
The purpose of this requirement is so that Mr. Wasson will be able to select the days of his individual parenting time with the schedule of the children's already-planned activities in mind.
e) Academic year vacation periods: Except as specified in this decision, the parties will divide equally their parenting time during school year vacation weeks, the children spending Sunday evening through Wednesday evening at 6:00 p.m. with one parent, and Wednesday evening through Sunday evening at 6:00 p.m. with the other parent; unless the parties agree otherwise, the children will begin the vacation week with the party that had parenting time on the immediately preceding Saturday (such that they spend from Friday of the weekend before at 5:00 p.m. through Wednesday evening of the vacation week with that parent).
f) Holidays:
(1) If the holiday parenting schedule conflicts with the regularly scheduled parenting schedule, the holiday schedule shall interrupt the regular schedule, which will resume at the next regular interval. For example, if Mother's Day falls on a weekend that would otherwise have been the defendant's parenting time, the plaintiff will have the children for Mother's Day weekend; the alternating weekend schedule will resume the following weekend, when the defendant will have his next parenting time. If Mother's Day falls on a weekend that would have been the plaintiff's time anyway, she will also have parenting time the following weekend, when the regular schedule resumes.
(2) The parties shall alternate all extended holiday weekends during the school year, except as set forth below for Mother's and Father's Days, Easter, Thanksgiving, or Christmas. In odd-numbered years, the defendant shall have parenting time on the first such extended holiday weekend; the opposite shall occur in even-numbered years.
(3) The children shall spend Mother's Day weekend with the plaintiff and Father's Day weekend with defendant.
(4) Easter Weekend: In even-numbered years, plaintiff shall have the children on Good Friday through Saturday at 6:00 p.m., and defendant the rest of the weekend until Monday morning; in odd-numbered years, the opposite.
(5) Thanksgiving weekend: In even numbered years, plaintiff shall have parenting time with the children from after school on Wednesday until Saturday at 9:00, and defendant the balance of the weekend; in odd-numbered years, the opposite.
(6) Christmas and New Year's: The minor children will divide the Christmas holiday vacation so that one party has parenting responsibility from after school on the day the vacation begins until 11:00 a.m. on Christmas Day and from 11:00 a.m. on New Year's Day until the children return to school; the other party will have parenting responsibility from 11:00 a.m. on Christmas morning until 11:00 a.m. on New Year's Day. In 2003 the father will have parenting responsibility for the portion of this cycle that includes Christmas Eve; in 2004, the mother will have parenting time during that portion.
(7) Halloween: The party with parenting time on Halloween shall permit the other party to spend half an hour with the children on Halloween evening.
g) Summers: Each party may have two consecutive weeks of exclusive parenting time during the children's summer vacation from school. Each party shall notify the other by April first of the two weeks in which that party seeks to exercise its exclusive parenting time during that summer or forfeit the right to exclusive parenting time for that summer. If the parties both seek the same the same two-week period or overlapping weeks, in odd-numbered years plaintiff will have to select two different continuous weeks for her exclusive parenting time and must notify defendant of her decision by April 15; in even-numbered years defendant will have to select two different weeks for his exclusive parenting time and must notify plaintiff of his decision by April 15. If either party fails to meet the April 15 deadline for such notification, that party will forfeit its right to exclusive parenting time for that summer.
For 2003, the deadlines in this paragraph are all made two months later. This year being odd-numbered, if the weeks selected by the parties overlap, the plaintiff will have to select other weeks for her exclusive summer parenting time.
5. Notices: Various portions of these orders impose duties on the parties to notify each other of certain matters. Except where otherwise stated, all such notices must be in writing, which may include e-mail notification. Each party shall provide the other with a current e-mail and mail address for receipt of such notices. When these orders require a party to notify the other, the notice must be delivered to the other by the stated deadline. (Failure of the other party to "sign for" special delivery or other methods of communication, however, will not excuse failure of the notifying party to provide timely notice.) Letters or writings sent by carrier are deemed delivered when left in the appropriate receptacle at the address most recently designated by that party. E-mails shall be deemed to be delivered when transmission is complete. If a party makes a good faith effort to notify the other party when required to do so, failure to meet the notice deadline because of deficiencies in the delivery mechanism shall not cause the party to forfeit the relevant rights, so long as the party sent the notice in a timely (i.e., in normal circumstances, it would have been delivered on time) and appropriate manner.
6. Both parents shall have reasonable telephone contact with the minor children when the children are with the other parent. Reasonable shall mean at least one telephone call a day when the other party's parenting time lasts more than 24 continuous hours.
7. Both parents shall treat each other with respect and courtesy. Neither parent shall make any derogatory remarks about the other parent in front of the children or within their hearing. Each parent shall seek to foster a close, loving, respectful, and positive relationship of their children with the other parent.
8. Each party shall immediately notify the other of any serious or emergency health issues involving a child when any of them are with that parent, and shall keep the other party informed of routine health matters involving all the children, including advance notice whenever practicable of all medical appointments.
C. FINANCIAL ORDERS
The court's financial orders take into account all the relevant statutory factors for each order, the facts proven in this case, the court's finding here of contempt against defendant for his non-compliance with the pendente lite support orders, and the previous order of the court, Novack, J.T.R., on January 29, 2002, that "$198,956 drawn down [by plaintiff from home equity loan] in violation of automatic orders. Division to be decided at trial." It is the intent of these orders to effectuate the distribution of property found above to be fair and equitable, subject to these adjustments.
Equitable Distribution of Property
a) Marital Home
(1) Allocation of Equity: The court orders the equity in the marital home divided between the parties such that defendant receives one-third and plaintiff two-thirds of the equity therein, subject to adjustments set forth in these orders.
(2) Adjustments: Any expenses assigned below as a party's responsibility that have not been paid by that party shall cause an adjustment in the parties' respective shares of the equity. Each of the following paragraphs shall be the basis for adjusting the two-thirds/one third allocation of equity in the marital home (or the payment of $554,000 described below).
For example, if the defendant pays off mortgage and home equity arrearages and related costs, his share of equity in the marital home shall be increased, and plaintiff's share decreased, by the amount of any payments the defendant makes to pay off arrearages and other expenses that are, under these orders, the responsibility of plaintiff. A specific instance is as follows: defendant pays an arrearage on the mortgage and other costs to settle the foreclosure. His payments consisted of the following: (a) principal and interest not paid when due for periods when plaintiff was living in the marital home; (b) late charges incurred before judgment here; (c) counsel and court fees of the mortgagee instituting the foreclosure. Under these orders, plaintiff is responsible for paying (a), and defendant for paying (b) and (c). The defendant's share of equity in the marital home will be increased, and plaintiff's share decreased, by the amount that defendant paid toward (a). There is no adjustment, however, for expenses he paid toward (b) and (c), since the court's orders assign responsibility for those expenses to him.
The plaintiff is responsible for paying any arrearages in the mortgage, home equity loan, or taxes owing for periods she has occupied the premises during the pendente lite period or after the date of this judgment.
The defendant is responsible for paying any late fees and any other charges incurred or imposed because of late payment, or nonpayment, of installments due under either the home equity loan or first mortgage during the pendente lite period and for the first thirty days after the date of this judgment.
Each party shall be responsible for all payments on the mortgage, home equity line, real property taxes, routine maintenance costs, and utilities incurred during that party's occupancy of the premises for periods they have exclusive use of the marital home after the date of this judgment. While occupying the house, the party shall also be responsible to pay for all minor repairs that cost less than $500; the parties shall split equally the cost of major or structural repairs costing more than $500. Except as set forth in the immediately preceding paragraph, each party shall also be responsible for late fees or other fees imposed by a court or mortgagee because of late or non-payment of payments that are the responsibility of that party.
(3) Preservation of the Equity: In view of the pending foreclosure on the marital premises, and the need to preserve the full value of the parties' equity, the court hereby allocates responsibility for any arrearages or related expenses: the defendant shall immediately make any payments necessary to pay off arrearages and any expenses resulting from such arrearages (such as late charges, counsel fees, etc.) that may be owing on either the mortgage or home equity loan. (To the extent that he pays expenses assigned under these orders to be the responsibility of the plaintiff those amounts will, under the previous paragraph, be the subject of an adjustment increasing his share of the equity.)
(4) Distribution of the parties' share of the equity:
(a) Payment by plaintiff of defendant's share: If plaintiff transfers the sum of $554,000, adjusted as required in these orders, to defendant by the last day of the sixth month following issuance of this decision, defendant shall simultaneously convey by quitclaim deed all of his right, title and interest in such property; and plaintiff shall thereafter indemnify and hold defendant harmless thereon. During that six-month period, defendant shall cooperate with any efforts of plaintiff to refinance said property.
(b) Sale of Marital Home: If plaintiff does not so transfer said sum to defendant by that date, the court orders the parties to sell the marital home. The parties are to cooperate in the listing, showing, and closing of the property. The parties shall immediately list the property for sale at its fair market value with a real estate agent familiar with real property values in the Greenwich area. If the parties cannot agree on a listing broker, price, terms of the listing or like details, either party may move this court for further orders. The parties shall accept the first bona bide offer within 5% of the asking price. Upon sale of the home, the plaintiff shall receive two-thirds and the defendant one-third of the net proceeds after all expenses from sale of the home (gross proceeds less realtor commissions, attorney fees for sale, conveyance taxes, and recording charges) have been paid, subject to adjustments set forth in these orders. The court retains jurisdiction over the issue of sale of the house.
(5) Interim Orders: The following orders shall be in effect until plaintiff pays to defendant his share of the equity as set forth in these orders or until sale of the marital home.
(a) The wife shall have the right of sole and exclusive use of the premises until the sale of the property or unless she vacates the premises before then.
(b) If the plaintiff vacates the property before its sale, defendant may re-occupy the house and be subject to all the same above orders. Otherwise, if plaintiff vacates the premises, both parties shall equally be responsible for all mortgage, home equity, tax, insurance, maintenance and upkeep expenses of the house, and shall equally share in any rental income the house may produce.
(c) Either party occupying the house must, upon vacating it, leave the premises broom clean. Any party occupying the house after this date shall not permit waste or damage to the property.
b) Other Assets:
(1) Plaintiff shall receive one-half the value listed on Defendant's November 2, 2002, financial affidavit of the following:
(a) Stocks and Options listed on section III-D of defendant's November 2, 2002 financial affidavit (described separately as "Morgan Stanley Brokerage Account," "MS Co Vested Units (saleable 9/8/03)," and "MS Co Vested Options"; and
(b) Deferred Compensation listed in section III-F of defendant's November 2, 2002 financial affidavit.
(c) Within thirty days of judgment defendant shall have taken all steps necessary to effectuate transfer of each such item, except where it is necessary to transfer the asset by way of qualified domestic relations order, which plaintiff's counsel shall prepare at the equal expense of the two parties. The court retains jurisdiction to approve said QDROs.
(2) From the 2000 and 2001 state and federal tax refunds listed on section III-G of defendant's November 2, 2002 financial affidavit, and the tax credit referred to in plaintiff's exhibit 63, plaintiff is awarded the sum of $40,554.50. The balance is awarded to defendant. Defendant shall transfer said sum to her within 60 days of the date of this order.
(3) Personalty: The parties shall divide equally household furnishings and marital property in the marital home, except for plaintiff's jewelry and furs, which shall remain hers. The parties have sixty days to divide the furnishings and personalty in the marital home, and the court retains jurisdiction to resolve any disputes that may arise in such division.
(4) Other assets: All remaining assets on each party's financial affidavit shall remain the property of the party listing said property.
(5) Custodial accounts for minor children: Defendant may retain possession of the Uniform Gifts to Minor Act accounts listed as "children's assets" on his financial affidavit, but may not spend any funds from such a custodial account in the name of a particular minor child until that child commences college.
(6) Leased Vehicle: Plaintiff may retain possession of the vehicle in her possession leased in defendant's name but shall be responsible for all payments in connection with the car and shall indemnify and hold defendant harmless for any expenses related to this vehicle accruing after the date of this decision.
c) Debts and liabilities: Except as specifically otherwise set forth herein, each party shall be responsible for paying all debts and liabilities listed on their respective financial affidavits, and shall indemnify and hold the other harmless thereon.
d) Counsel fees: Each party shall be responsible for paying its own counsel fees. They shall split equally the fees for the guardian ad litem and counsel for the minor children. Each party shall receive credit for payments it has already made toward that party's portion of the fee. These fees shall be paid within 60 days of the date of this decision, or if acceptable by the GAL or AMC, upon a payment schedule agreeable to the GAL or AMC.
e) Unallocated Alimony and Support:
(1) The court awards unallocated alimony and support to the plaintiff for fifteen years in the monthly amounts set forth below, plus one-third of all additional compensation or award that defendant receives from his employment for past services in excess of $250,000 per year up to and including 1.5 million dollars per year, and 15% of the next $500,000 of such gross additional compensation or award in any calendar year.
(2) For the first year after this decree, defendant shall pay unallocated alimony and support in the amount of $12,000 per month; for the next year, $11,000 per month; for the third year, $10,000 per month; and for the fourth year, $9,000 per month. After the fourth year, defendant shall pay unallocated alimony and support of $8,000 per month.
(3) Compensation and awards shall include but not be limited to any bonus, commission, stocks, options, units or variant thereon, whether vested or unvested, and whether presently saleable or not saleable until the future.
(4) Where defendant receives such additional income as increased salary or regularly recurring payments, plaintiff's share of the increase shall be paid to her monthly at the same time as the base amount set forth in (2) above. When defendant receives such additional compensation or award in any other manner than regularly recurring payments, defendant shall pay plaintiff her share within two (2) weeks after he receives the compensation or award, by way of qualified domestic relations order where necessary. The court retains jurisdiction to approve any such QDROs, which plaintiff's counsel shall prepare at the parties' equal expense.
(5) The husband shall provide satisfactory evidence to the wife of this additional cash compensation or award six months from the date of this order and every six months thereafter so long as he has an alimony obligation hereunder.
(6) Each party shall notify the other in writing within thirty (30) days of any change in his or her respective employment status. Such notice shall include the expected salary, wages or other form of compensation or award from such employment including any bonus or other pecuniary benefit.
(7) The husband shall provide the wife with a copy of the annual federal tax returns for the trust along with any Form K-1 within thirty (30) days of filing, but in no event later than October 1 of the year in which the tax return is due, whichever shall sooner occur.
(8) Alimony shall be terminable upon the death of either party, the plaintiff's remarriage, or cohabitation as defined by statute or fifteen years from the date hereof, whichever first occurs. Should alimony terminate before the end of the parties' legal responsibility for child support, child support orders shall enter in accordance with then applicable child support guidelines.
(9) Until the plaintiff begins working, defendant shall be responsible for all unreimbursed health care expenses after the first hundred dollars each year of such expenses, which shall be plaintiff's responsibility. When the plaintiff returns to work, however, the court considers it appropriate, fair and equitable to consider plaintiff's earning capacity to determine allocation of payment for unreimbursed health care expenses in excess of $100 per year and of plaintiff's child care expenses necessary to allow her to work; upon her return to work, plaintiff shall be responsible for 35% and defendant 65% of such expenses. Health-related expenses shall include medical, dental, orthodontic, vision, hearing, psychological and mental health expenses.
f) Prior Pendente Lite Orders: The pendente lite support order remains in effect through the date of this decision. Arrearages through December 2002 are merged into this judgment, but any additional arrearage for months after December 2002 are not merged into the judgment and survive the judgment. In the event the parties are unable to agree as to the amount of any such arrearages owing for 2003, and how they are to be repaid, then either party may file an appropriate motion with the court.
g) Health insurance for the minor children: Under General Statutes § 46b-84 (f), the court dissolving a marriage must include provisions in the support order for health insurance coverage for any minor children. The court orders the defendant to continue providing health insurance for the minor children that is comparable in scope or better than that offered under the HUSKY plan established in general statutes § 17b-289 et seq. so long as such insurance is available to the defendant through his employment at a cost less to him than HUSKY insurance. If such cost exceeds the cost of HUSKY insurance, or if the defendant loses the right to obtain health insurance for the minor children through his employment, the then primary custodial parent of each minor child shall maintain health insurance for that particular child.
h) Post-secondary educational expenses: Pursuant to a stipulation between the parties, either party may hereafter file a motion or petition for an educational support order pursuant to General Statutes 46b-56c.
i) Life Insurance: The defendant shall maintain the one million dollars in life insurance listed on his financial affidavit, naming the plaintiff as primary beneficiary and minor children as secondary beneficiaries, for as long as he remains legally obligated to pay alimony or child support.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT