No. FA 04-4002471S
January 2, 2007
MEMORANDUM OF DECISION
This decision enters financial orders to be incorporated into the judgment of dissolution. On October 3, 2006, this court granted the defendant's motion to open the original judgment of dissolution and vacate the original financial orders. The custodial orders entered at the time of the dissolution were not affected by that ruling and remain in effect. The parties appeared pro se for hearing on new financial orders on December 13, 2006, at which time each one testified and offered certain exhibits into evidence. By agreement of the parties, the court here is considering not only the testimony offered that day, but the testimony and evidence previously presented to the court on the motion to open and on a motion for contempt filed by the plaintiff. The principal issues in dispute are allocation of equity in the former marital home, responsibility for debt owed on a condominium timeshare and a repossessed Chevrolet Malibu motor vehicle, and alimony and child support. Although the court enters the orders here almost two years after the original dissolution, the court must do so on the basis of the value of the parties' assets and their indebtedness as of the time of the dissolution of their marriage. "In the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property." (Internal quotation marks omitted.) Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990).
The parties were married on June 26, 1999, and they have one biological child and two adopted children. In addition, the plaintiff has a twelve-year-old child from a previous relationship who lived with the parties until they separated. Both have remarried since the judgment of dissolution, and the defendant has had a child with his new wife. In the year 2000 the parties purchased a single-family home located at 57 Ashford Street in West Haven for $85,000. Both parties contributed to the purchase. In November 2003 Mr. Doram vacated the home and moved in with another woman. He returned to the marital home a short while later, but the parties did not resume marital relations. In April, they refinanced the marital home. The plaintiff used the bulk of the cash proceeds to pay off joint debt and renovate the home, including adding a fourth bedroom and a computer room in the basement and remodeling a bathroom, but she also gave approximately $7,000 of the proceeds to Mr. Doram when he again left the home later that spring. Just before he left the family home the second time, the parties agreed that Ms. Taveres would stay in the family home with the children and Mr. Doram could keep his pension for himself. Since then, the plaintiff has lived there with her children and paid the mortgage and all other expenses associated with the home, and the plaintiff has spent approximately $15,000 from funds in his 401K. As of December 31, 2004, the 401K was worth $25,420.99.
The evidence establishes that fault on the defendant's part was the primary reason for the breakdown of the marriage. When the court opened the judgment and vacated the financial orders entered at the time of the dissolution, the court ordered reinstatement of the pendente lite support orders entered November 4, 2004, for the defendant to pay the plaintiff child support of $162 per week and alimony of $125 per week. The defendant was then earning $1,075 per week gross and almost $800 per week net after taxes and union dues. The plaintiff worked part-time earning $196.25 per week gross and $181.24 net. While the parties had been married, she was primarily responsible for care of the children and relied on her husband, as the breadwinner for the family, for support. With responsibility for several small children at home, the plaintiff's intention to work part-time after the dissolution while she attended college to obtain a degree in early childhood education was a reasonable plan to become financially self-sufficient and no longer need spousal support from her ex-husband. After considering the statutory factors for awards of alimony in light of the facts of this case, this court finds that the pendente lite amount was fair and appropriate for a final award of alimony as well. The vacated order that the defendant pay for the plaintiff's health insurance was a reasonable additional component of alimony and the court now orders such as additional alimony. Since the plaintiff currently owes debt for certain medical expenses she incurred because the defendant did not provide health insurance for her after the original dissolution, he should now pay those medical expenses she incurred. These alimony orders are effective on the date of the original judgment of dissolution.
On October 19, 2006, the court terminated the defendant's alimony obligation by agreement of the parties because the plaintiff had remarried. The question as to whether termination of alimony should be retroactive to the date of her remarriage on August 5, 2006, was reserved to the trial court. Under General Statutes § 46b-86, no support order may be modified retroactively unless a marshal or other process service authorized by General Statutes § 52-50 has served the motion seeking modification. The face of the motion to modify shows that defendant hand-served a plaintiff with the motion. Since service was not made by marshal or other authorized process server, the termination of alimony cannot be retroactive and thus became effective on the date of the court order.
Section 46b-86(a) of the General Statutes, provides, in relevant part, that "No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of any alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50."
In terms of child support, the court has ascertained that the child support guidelines worksheet used as a basis for the pendente lite child support order did not list as income the adoption subsidy that the plaintiff receives, did not include the parties' adopted children as beneficiaries of the support order, and did not impute a support obligation to the plaintiff for her other child. All of these were errors in the original order that would be inappropriate to perpetuate in the final order of child support. See Child Support Guidelines, Regs. Conn. State Agen. § 46b-215a-1(11)(A)(xix), which includes adoption subsidy benefits in "gross income" for computing child support; § 46b-215a-1(9), which defines "dependent" children for whom child support is calculated to include a "child for whom a parent is legally responsible under state law"; and § 46b-215a-2b(c)(2)(L) and (e), which requires a deduction from parental income for the "imputed support obligation" for a child who is "dependent" of that parent, who currently lives in the same household with the parent, and "for whom the parent has not claimed a deduction under section 46b-215a-1(1)(I)" of the Guidelines. Since the parties did not provide reliable evidence as to the amount of the adoption subsidies the plaintiff was receiving at the time of the dissolution judgment, the court lacks sufficient evidence to enter a correctly-calculated child support order as of that date. The child support order here, using the parties' present incomes, shall thus be effective as of the date of this decision. The plaintiff has gross income of $472 from her work and the adoption subsidies; her net income, after taking into consideration the imputed support obligation, is $411 per week. The defendant has gross income of $1,075 per week; and his net income is $816 per week. The defendant is also entitled to a deduction from his income for his support obligation to his newborn child. As shown on the attached Child Support Guidelines Worksheet, the presumptive support amount is for him to pay $254 in child support for the parties' three minor children, plus 46% of unreimbursed medical expenses and qualifying child care expenses. The court enters these amounts as the child support order effective the date of this decision.
Section 46b-215a-1(1)(I) of the Child Support Guidelines allows an "allowable deduction" from income for a parent's payments on "court-ordered alimony and child support awards for individuals not involved in the support determination," but "only to the extent of payment on any non-arrearage amounts."
On May 5, 2005, the court, Kenefick, J., found that the defendant owed an arrearage on alimony and child support of $2,820 as of that date. The defendant now disputes that finding and claimed here that he actually provided the plaintiff with significantly more support than Judge Kenefick's decision acknowledged. This court is bound, however, under principles of collateral estoppel and res judicata by that decision. The defendant had a full and fair opportunity to litigate the issue then. The court's order provided that the arrearage would be forgiven if he remained current until any subsequent modification. But the evidence showed here that he did not remain current in his support obligation after the court's order. Between that date and July 1, 2005, when a wage execution went into effect, he paid her $750 but owed her $861 ($287 per week for 3 weeks) for that time period for alimony and child support. The court thus does not alter Judge Kenefick's arrearage finding.
"Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding . . ." Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, 69 Conn.App. 151, 154-55 (2002). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Citations omitted; internal quotation marks omitted.) Pitchell v. Williams, 55 Conn.App. 571, 577-78, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000).
Five days after Judge Kenefick's order, the clerk's office entered a wage withholding order for $287 per week, based on weekly child support of $162 and weekly spousal support of $125. After this court terminated alimony on October 10, 2006, the clerk's office entered an amended wage withholding order on October 26, 2006, for $162 per week in child support. Thus, there has never been a wage withholding order for any payment on the arrearage found by Judge Kenefick. Since there was no evidence offered to this court that the defendant has made any direct payments to the plaintiff on the arrearage since the May 2005 order, the court finds that the arrearage remains at $2,820, less any funds withheld from the defendant's pay in excess of the weekly child support order (of $125 per week) between October 10, 2006 and the date that the amended wage execution order of October 26, 2006, resulted in less money being deducted from the defendant's income. Based on the Child Support Arrearage Guidelines, the defendant shall pay $51 per week toward the arrearage until it has been fully satisfied.
The remaining issue is equitable division of property. "There are three stages of analysis regarding the equitable distribution of each resource; first, whether the resource is property within Section 46b-81 to be equally distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties." Krafick v. Krafick, 234 Conn. 783, 792-93 (1995). The court finds that all items listed as assets on each party's financial affidavit at the time of the dissolution judgment are property within the meaning of § 46b-81 and hence subject to distribution by the court.
The parties dispute the value of the Ashford Street property. The plaintiff maintains that the property was worth approximately $100,000 at the time of the dissolution in December 2004. She testified that she based her valuation on the property principally on her belief that it was appraised for that amount in May 2004 when the parties refinanced the property. The exhibit she introduced into evidence to support her testimony, however, does not support her claim as to its value at the time of the refinancing. Instead, exhibit two consists of her own handwritten notes, a receipt showing mailing of certain documents to the refinancing company, the invoice and receipt for the appraisal performed by the lender on the property, a notice of her right to receive a copy of the appraisal report, and a "Mortgage Loan Contract and Good Faith Estimate" listing the terms of the refinancing and its costs, and signed by her but not by any agent of the mortgage lender. These documents merely show that the refinanced loan would be for $100,000. She also introduced into evidence a July 2006 letter from a realtor stating that the present value was between $170,000 and $180,000.
The defendant claims, on the other hand, that the property was worth at least $250,000 because of the many improvements the parties had made to the property. A copy of a page from the West Haven Town land records that he introduced into evidence shows that the town appraised the property sometime in 2005 as worth $169,400; that record also shows that this valuation did not take into consideration the improvements on the property since the parties purchased it. The court can reasonably infer that the appraised value would have been greater if the Town had been aware of those improvements. The defendant also introduced a "Comparative Market Analysis" prepared by a realtor recommending a sales price of $247,300 and stating that "similar properties are selling in the range of $212,000 to $320,000."
Although a party may properly give opinion testimony about the value of property it owns, the court is not bound by that testimony, particularly where the bases of that opinion are shown not to be reliable. The evidence as to the 2005 appraisal is somewhat more helpful than the other documentary evidence because of its closer proximity in time to December 2004. None of this evidence, however, conclusively resolves the question as to the value of the property in December 2004. The most that the court can find is that the family home was probably then worth at least $169,000 and had mortgage indebtedness of approximately $100,000. Any greater value than that would be speculative. Thus, there was equity of at least $69,000.
The original judgment of dissolution provided that:
There is no property to divide except the Chevy Malibu in the defendant's name will remain in the possession of the plaintiff and defendant will continue to pay the insurance on said vehicle.
The parties will share use of the Silverleaf property and inform one another when they intend to use said property.
Although those orders were vacated when the court granted the defendant's motion to open, the debt on both properties has become an issue in this proceeding.
The evidence shows that, in violation of the property division order in the judgment of dissolution (since vacated by this court), the defendant retained possession of the Malibu and allowed his girlfriend to drive the vehicle until the plaintiff took possession of it in mid-June 2005. When the defendant learned that late payments by the plaintiff on the Malibu were affecting his credit, he arranged for its voluntary repossession by GMAC; but he was unaware that the defendant had already entered into a payment agreement with GMAC. As a result, neither party now has the vehicle, and debt is still owed to GMAC on it in the amount of $4,853, and back taxes are owed on it in the amount of $1,184.
Although the parties agreed in their original separation agreement to "share use of the Silverleaf property," they also agreed there that "defendant will be responsible for the Silverleaf Resorts debt." The defendant did not, however, keep current on the debt, which has grown from approximately $5,000 at the time of the dissolution to almost $7,000. When the plaintiff learned that the defendant was not paying that debt, she made preliminary arrangements with the lender to assume the debt, but did not complete doing so when the parties could not agree on use of the property.
The two major assets owned by the parties at the time of the dissolution were the marital home and the defendant's pension. Together they then had equity in these assets of approximately $94,000. Their major debt at the time of the dissolution, other than the mortgage, was approximately $14,000 owed to GMAC on the Malibu, $10,000 on a Ford Windstar driven by the defendant, and $4,000 owed on the timeshare. As noted above the GMAC debt is now less than $5,000, probably primarily because of the repossession, and the debt on the timeshare has grown.
In view of the plaintiff's limited financial means now, the fact that she plans to finish her part-time course of college study in four years, the defendant's fault for the breakdown of the marriage, and the other facts of this case in light of the statutory factors for equitable division of property, the court finds that the plaintiff should be awarded two-thirds of the net equity in the parties' assets at the time of the dissolution, and the defendant should be awarded one-third. To effectuate this finding, the court will award title and possession of the family home to the plaintiff, the full value of the defendant's IRA to him, and a $6,000 interest in the family home to the defendant. In view of the ages of the minor children for whom the plaintiff provides care and her part-time work schedule while she completes college, the court orders that defendant shall be paid his share of the equity by December 31, 2011. Neither party assigns any value to their interest in the Silverleaf Resorts, Inc., condominium timeshare and the court finds they have no equity in the property and owe only debt for it. The defendant should be responsible for two-thirds of the debt on the Silverleaf condominium, and plaintiff for one-third. To the extent that the defendant pays off any share of the condo debt assigned by this court to the plaintiff, the defendant's distribution of equity in the marital home shall be increased by the amount of any payments he makes to satisfy her obligation to pay one-third of the timeshare debt. Since the defendant retained the GMAC until mid-June 2005 and then arranged a voluntary repossession shortly after the plaintiff took possession of it, and since the plaintiff had made satisfactory payment arrangements with GMAC that the repossession thwarted, the court finds that the vehicle and responsibility for its debt should be assigned exclusively to the defendant.
All other property listed on the parties' financial affidavits is awarded to the party listing the property and found to have the value recited by that party on that affidavit.
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 observed the demeanor of the parties and evaluated their credibility. After considering all the statutory criteria for orders regarding equitable division of property and debt, alimony, support of minor children, orders of life and health insurance, and payment of the children's health expenditures, together with applicable case law and the evidence presented here, the court hereby enters the following orders:
A. Equitable Division of Property 1. Family Home
a. Title and exclusive possession of the family home at 87 Ashcroft Street and its furnishings in West Haven is awarded to the plaintiff. She shall be responsible for making all payments for mortgage, tax and insurance obligations on the marital home or on any of the furnishings from the date of judgment. Until the defendant is released from all financial liability for mortgage debt, debt or taxes on the marital home incurred after the date of dissolution, the plaintiff shall indemnify and hold him harmless thereon, except as further specified herein.
b. Within 30 days of the date of this decision, the defendant shall deliver to the plaintiff a quitclaim deed transferring to her all of his right, claim and interest in the property. Simultaneous with his delivery of the quitclaim deed, she shall deliver to him a mortgage note, secured by a mortgage deed on the property, in the amount of $6,333 plus 5 percent simple annual interest. Said note shall be due and payable four years from the date of this decision. No later than December 31, 2011, the plaintiff shall pay to the defendant the sum of $6,333 plus interest, and also plus full reimbursement of any moneys the defendant may have made to Silverleaf Resorts or its successor to satisfy plaintiff's obligations under these orders. Upon her delivery to him of the sums due under this paragraph, he shall give to her a full release of the mortgage note and deed.
2. The defendant is awarded full title and use of his IRA pension, the Ford Windstar, and all other property listed on his financial affidavit of December 14, 2004. Plaintiff is awarded full title and use to the bank and credit union accounts listed on her December 14, 2004 financial affidavit.
a. Defendant shall be responsible for the debt owed to GMAC and for any taxes owed on the Malibu. He shall be responsible for two-thirds of the debt owed for the Silverleaf Resorts property and plaintiff shall be responsible for one-third of that debt. Except as otherwise provided herein, each party shall be fully and exclusively responsible for all other debt listed on the liabilities section of each one's December 2004 financial affidavit.
b. Each party shall indemnify and hold the other harmless on debt assigned to that party.
4. Assets acquired since the Judgment of Dissolution remain the property of the party acquiring that asset and, except as otherwise ordered here, any indebtedness incurred by either party since then remains the responsibility of the party incurring that debt.
1. Alimony: Alimony in the amount of $125 per week is ordered through October 19, 2006. The defendant shall provide the plaintiff with health insurance for the period from the date of dissolution through October 19, 2006, and to the extent that he did not comply with a similar but vacated order in the original judgment he shall pay any medical bills the plaintiff incurred between those dates because she did not have health insurance for herself.
2. Child support: The defendant shall pay current child support in the weekly amount of $254 plus 46% of unreimbursed medical expenses and qualifying child care expenses.
3. Arrearages: The defendant shall pay plaintiff $51 per week on the $2,820 arrearage in alimony and support found by Judge Kenefick. Any amounts withheld from the defendant's wages in excess of the weekly pendente lite child support order of $125 per week between October 10, 2006, when the court terminated his alimony obligation, and the date that the amended wage execution order of October 26, 2006, resulted in less money being deducted from the defendant's income should be credited toward the arrearage.
4. Wage Execution: Payments for current child support and for the arrearage shall be by way of immediate wage execution.
5. Post-Secondary Education: The court retains jurisdiction to enter an order for post-secondary educational support upon motion of either party.
6 Health Insurance: The defendant is ordered to provide health insurance for the minor children as is available to him at a reasonable cost through his place of employment. If such is not available to him, plaintiff is subject to the same order. If neither party has affordable health insurance for the minor children available through their employment, they shall place the children, if they are eligible, on HUSKY or other public-funded health insurance.
7. Tax exemptions: As long as there are at least two dependency tax exemptions for the parties' three children, the defendant will be entitled to one dependency federal and state income tax exemption for any year in which he remains current with the orders contained in this decision for payment of child support and arrearages, or as may be modified by any subsequent orders. After there is only one child for whom a dependency exemption may be claimed, the parties shall alternate the exemption, but defendant will forfeit his right to do so in any year in which he has not remained current on the child support and arrearage orders issued here or as may be later modified.