Opinion
No. FA09-4042163-S
April 29, 2011
MEMORANDUM OF DECISION
This action seeks the dissolution of the parties' fourteen-year and ten-month marriage. The action was commenced by a complaint dated January 21, 2009 which was returnable to the court on February 17, 2009. The defendant filed an answer and a cross complaint on February 25, 2009.
The parties appeared at trial on April 12, 2011. The plaintiff and defendant were each represented by counsel. The court heard testimony from each of the parties and received into evidence seven exhibits. The court considered all of the relevant evidence presented, the provisions of General Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-81, 46b-82, 46b-84, and 46b-215a, and the provisions of the Child Support and Arrearage Guidelines.
As financial matters were in dispute in the contested dissolution trial, the court ordered the unsealing of the financial affidavits pursuant to Practice Book § 25-59A.
FINDINGS OF FACT
The court makes the following findings of fact. All factual findings made herein have been made by a fair preponderance of the evidence unless otherwise set forth herein.
The parties were married in Hartford, Connecticut on June 26, 1996. Two children were born to the parties before the date of the marriage: Collin Jr. was born on July 26, 1989 and Chelsea was born on December 2, 1993. The children reside with the defendant in the marital home. The plaintiff and the defendant have lived in the State of Connecticut for more than one year prior to the date of filing of the complaint.
Collin is an adult. He has recently been arrested and the parties have worked cooperatively to obtain a lawyer for him.
Chelsea is in high school and will graduate in June 2011. The parties stipulated to joint legal custody of Chelsea with primary residence with the defendant mother and liberal and reasonable parenting time for the plaintiff. The credible evidence is that both parties enjoy a good relationship with the children.
The plaintiff is forty-six years old. He completed high school and attended one year of college. During the marriage he worked doing asbestos removal and demolition work. He then became a union construction laborer sometime around 1999. He was earning $24 an hour prior to being injured on the job in 2008. After his injury he has been unable to work as a laborer. His injury involved his left wrist and hand and his ribs. He has had three surgeries on his wrist and hand. He testified that he suffers from post traumatic stress disorder and receives therapy to address the same. He is currently receiving workers' compensation at the rate of $597 weekly as temporary partial benefits.
He has been cleared to resume light duty but has not been able to find employment. He is receiving vocational retraining through workers' compensation and is in a one and one-half year program for "computer tech."
The plaintiff has not received an award for his injuries under General Statutes § 31-308a. He has retained a lawyer to assist in pursing his claims for compensation for his work-related injuries.
He testified that he is in good health — other than his injuries and other than taking pain medication every day.
The defendant moved to this country from Guyana when she was sixteen. She met the plaintiff when she was twenty-five. Both parties testified that there were on-going problems during the marriage. The plaintiff testified that the parties accused each other of infidelity. The defendant testified that the plaintiff never accused her of infidelity while they were together; she further stated she had no extramarital affairs, but he was always with someone else. The defendant claims he was verbally, mentally and physically abusive to her. She obtained a restraining order against him in December 2008 and he moved out in January 2009 as a result thereof.
In May 2009 she was tested for sexually transmitted diseases and learned she had syphilis. There was no evidence of the defendant having syphilis although counsel, in closing argument, indicated the defendant was tested in 2009 and did not have the same. The court does not accept that as evidence and even if it was so accepted, does not credit the same as meaning he did not transmit the disease to the defendant and thereafter receive treatment causing him to be free thereof when tested at sometime in 2009. The court found the defendant to be the credible witness.
The defendant is currently in good health. As to her education, she attended Manchester Community College for one year and thereafter obtained a medical assistant certificate or degree from another program. For the past two years she has worked as a medical assistant in a physician's office and currently earns approximately $32,000 to $33,000 a year. The defendant was previously employed for six years at Connecticut Children's Medical Center (CCMC).
The defendant and the children live in the marital home located at 603 New Britain Avenue, Hartford, Connecticut. The home was purchased in 1999. The home is in the name of the defendant and she testified, without having the same contradicted, she paid the down payment — although the source of funds would appear to have been marital funds as there was no testimony the defendant came into the marriage with any funds of her own. The court finds the value of the home to be $150,000. The home is subject to a first mortgage having an outstanding principal balance of approximately $78,500 and a home equity loan having a balance of approximately $15,500; the equity in the home is approximately $56,000.
The plaintiff has not contributed to the household expenses, including the payment of the mortgage, property taxes and insurance, since December 2009. The defendant has kept the mortgage current, but is behind in payments to the utility companies. In 2008, a mechanic's lien was filed by a drywall contractor against the marital home. Both parties credibly testified to being unaware of the contractor and of any work done that could have given rise to such lien. No action to foreclose the lien has been instituted within one year of the filing of the lien and no lis pendens has been filed.
The defendant's health insurance, which is obtained through her employer, also covers Chelsea and the defendant pays the cost for such coverage in excess of the employer's contributions. The plaintiff has not since leaving the marital home contributed to the unreimbursed medical expenses for Chelsea. There was no evidence of the amount owed by the plaintiff for the unreimbursed medical expenses and therefore the court is unable to find an arrearage with respect thereto. The plaintiff does not have any medical insurance available to him at this time.
The plaintiff has been paying child support during the pendency of these proceedings at the rate of $127 a week. He is current with such payments.
The plaintiff had a State Farm IRA in the amount of $15,134. Despite the automatic orders, he withdrew funds from the IRA and used them to buy a car, furniture for his apartment and other items. He also has a pension valued, in 2009, at approximately $50,000 through the Connecticut Laborer's Pension Fund. In 2008, the defendant withdrew approximately $20,000 from another IRA of which he claims $1,000 was given to the defendant and the rest used to buy furniture for the marital home. He also has a small annuity with the Iron Workers' Locals 15 424 having a value as of September 30, 2010 of approximately $500.
During the marriage, the defendant withdrew funds from her retirement funds earned while she worked at CCMC which she used to improve the marital home. She also has a 401(k) plan through John Hancock having a balance of approximately $300.
The plaintiff owns two vehicles: a 1987 Mercedes which is not in working order and has a value of approximately $300 and a 2001 Nissan having an undisclosed value — it was purchased with a portion of the funds from the State Farm IRA. The defendant also owns two vehicles: a 2008 Camry having a value of $21,000 and subject to a loan in the amount of $21,000 and a 1993 Mercedes having a value of approximately $300.
The defendant has household furnishings and personal belongings which she valued at approximately $6,000; although the plaintiff claims the value of the household furnishings is closer to $20,000. The defendant's personal property (other than that located in the marital home) has a value of approximately $2,500.
The plaintiff has two bank accounts at People's Bank having negligible funds therein. The defendant lists no bank accounts on her financial statement.
The plaintiff also has his workers' compensation claim.
The parties have filed their federal and state income tax returns separately for the past few years. The defendant owes approximately $3,000 from 2007 to the U.S. Treasury. Her debts also include property taxes to the City of Hartford for motor vehicles, a student loan, a personal loan, utility payments for electricity, gas and water, and attorneys fees to her counsel. Her liabilities, other than the mortgage, are in the approximate amount of $18,000. The plaintiff's financial affidavit lists two credit card bills and $12,000 payable to CitiFinancial in connection with a personal loan. His total liabilities are approximately $12,400.
Based on credible testimony, the court finds the plaintiff to be more at fault for the dissolution of the marriage than the defendant.
ADDITIONAL FINDINGS AND ORDERS
The court makes the additional findings and enters the following orders:
A. Jurisdiction and Dissolution
The court has jurisdiction in this matter which has been pending for more than ninety days. The plaintiff and defendant have lived in the State of Connecticut for more than one year prior to the institution of the action.
The marriage has broken down irretrievably. The court finds the allegations of the complaint have been proven and true.
The State of Connecticut has not contributed to the support of the parties or the children.
A decree of dissolution shall enter.
B. Custody and Access
As the parties stipulated at trial and after considering the credible testimony at trial together with the factors set forth in General Statutes § 46b-56(c), the court orders joint legal custody of the minor child with primary residence with the plaintiff mother. The defendant father is granted liberal parenting time as agreed upon by the parties.
The court finds the foregoing orders to be in the best interest of the minor child.
C. Child Support.
The court finds the presumptive amount of child support payable by the plaintiff pursuant to the Connecticut Child Support and Arrearage Guidelines is $135. After hearing the testimony of the parties and reviewing the financial affidavits, the earnings of the respective parties, and the deviation criteria set forth in Section 46b-215a-3(b)(6) of the Child Support and Arrearage Guidelines Regulations, the court orders the plaintiff to pay the defendant the sum of $135 per week for child support.
D. Medical insurance
For so long as the same is available to her, the defendant shall continue to maintain, at her expense, through her current health insurance carrier, health insurance for the minor child; however, if the minor child shall not have graduated from high school at the time of her eighteenth birthday, then the provisions of General Statutes § 46b-84(b) shall apply. If medical insurance is not available to defendant at a reasonable cost, the plaintiff shall maintain medical insurance for the child if available at reasonable cost through his employer. If neither party is able to obtain health insurance at reasonable cost through their employer, the defendant is to apply for HUSKY or equivalent insurance for the minor child and the plaintiff and defendant to share equally the cost of any HUSKY or equivalent insurance premiums. Reasonable cost as used herein shall be as defined in General Statutes § 46b-84(f)(2)(D).
The defendant shall obtain her own medical insurance and the plaintiff shall do so as well.
The plaintiff shall be responsible for 44% of the amount of any unreimbursed medical, dental, optical, pharmaceutical, psychological, psychiatric, and orthodontic expenses, including any deductibles, for the minor child; however, if the minor child shall not have graduated from high school at the time of her eighteenth birthday, then the provisions of General Statutes § 46b-84(b) shall apply. In addition, the provisions of General Statutes § 46b-84(e) shall apply regarding the processing of medical insurance claims for the minor child.
E. Extra-curricular activities for the child
The parties shall also equally share the expenses for the child's extra-curricular activities
F. Post-majority support
The court finds as a matter of fact that it is more likely than not that the parents would have provided support to their children for higher education or private occupational school if the family had remained intact. Pursuant to the provisions of General Statutes § 46b-56c, the court reserves jurisdiction to determine educational support and each party reserves their respective right to file a future motion or petition for an educational support order.
CT Page 10272
G. Alimony
Based upon the statutory factors, including without limitation, the age, education, earnings, station of the parties, vocational skills and work experience of the defendant and the plaintiff the court awards no alimony to either party.H. Division of property
1. Marital home. The defendant shall retain the marital home. The defendant shall have exclusive possession of the property. The defendant shall be responsible for all of the expenses of said property, including, without limitation, the mortgage, home equity loan, real estate taxes, insurance and utilities and shall indemnify and hold the defendant harmless in regards to the same. In the event the defendant seeks to discharge the lien (beyond the discharge as a matter of law pursuant to General Statutes § 49-39), the defendant shall be solely responsible for all costs and expenses incurred in so doing.
The plaintiff was seeking to have the marital home sold and the proceeds divided between the parties. The court is, instead, awarding him compensating assets.
2. Automobiles. Each party shall retain the vehicles shown on their respective financial affidavit free and clear of any claim by the other party and shall indemnify and hold the other harmless in connection with any expense or cost related to such vehicles, including expenses for repairs, insurance and taxes. The defendant shall indemnify and hold the plaintiff harmless from the loan secured the 2008 Toyota.
Within thirty days of the date hereof, each party shall execute any documents necessary to effectuate the transfers of any such vehicle.
3. Workers' compensation benefits. Workers' compensation benefits for partial permanent disability pursuant to General Statute § 31-308a.
Future benefits to be received by a party to a dissolution action for a specific indemnity award under the workers' compensation statute are property subject to distribution under Section 46b-81 of the General Statutes even where the amount of those benefits has not been determined at the time of dissolution. Tyc v. Tyc, 40 Conn.App. 562, 567, cert. denied., 237 Conn. 916 (1996). Due to the award being unliquidated, uncertain and speculative the court is unable to place a value on said claim. The court finds the plaintiff's argument that the award should not be included in the marital estate because the award will be, if and when awarded, attributable primarily for lost wages and income for the period after the dissolution does not preclude the award from being included in the marital estate, but rather goes to the percentage of the award allocated to the defendant.
Based on all of the credible evidence heard at the trial and considering the court's award of no alimony to the defendant as well as the distribution of marital assets otherwise set forth in this memorandum, the court orders the defendant shall have 25% of any amount recovered by the plaintiff under General Statute § 31-308a. The defendant's 25% share shall be of the net amount awarded to the plaintiff after payment of counsel fees and costs. The plaintiff shall remit to the defendant her share within thirty days of his receipt of any award under General Statutes § 31-308a and/or his receipt of any increased benefit as the result of any appeal taken by the plaintiff.
The court retains jurisdiction to enter additional or alternative orders to carry out the purposes of this section.
4. Savings accounts and bank accounts. The parties shall retain any bank account they may hold free and clear of any claim by the other party.
5. Debts. The plaintiff and the defendant shall each be responsible to pay all of the debts shown on their respective financial affidavit. Each party shall indemnify and hold the other harmless with respect to any debt, or portion thereof, ordered to be paid by such party.
6. Retirement assets. The plaintiff shall retain his pension benefit under the Connecticut Laborers' Pension Fund, his annuity through the Iron Workers' Locals 15 424 and his State Farm IRA.
The defendant shall retain her John Hancock 401(k).
7. Personal property. From the personal property located in the marital home, the plaintiff shall receive his DJ equipment, the weed whacker and any tools (other than garden tools) that he purchased either before or during the marriage. If he has not yet removed all of this clothing, he shall be permitted to retrieve the same. Except for the foregoing, the defendant shall retain the remaining personal property located in the marital home.
Each party shall be entitled to her/his personal property (to the extent not allocated in the preceding paragraph) free and clear of any claim by the other party.
I. Tax Exemptions
The parties shall alternate the children for tax deduction purposes, with the plaintiff having odd years and the defendant having even years. The plaintiff shall be entitled to take the tax deduction only if he is current in his support obligation, including his obligation to pay unreimbursed medical expenses. The parties shall cooperate to effectuate the provisions of this section and shall execute any forms necessary.
J. Tax Indemnification
Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that parties' income or deductions.
K. Tax and employment Information
For so long as the plaintiff is obligated to pay child support, each party shall notify the other within fifteen days of the date such party obtains or changes employment. The notification shall include the name and address of the employer and the anticipated salary or wages to be earned by such party.
For so long as the plaintiff has an obligation to pay child support to the defendant, the parties will annually exchange their W-2s, 1099s, K-1 and similar forms by February 15 each year and will provide each other with their federal tax returns within fifteen days of filing.
L. Fees
Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
M. Effectuation of Orders
Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within ten days of presentment.
Unless otherwise specifically set forth herein, these orders are effective immediately.
SO ORDERED.