Opinion
No. FA01-0342634 S
October 18, 2004
MEMORANDUM OF DECISION
This is an action that is before the court on a remand order. Casey v. Casey, 82 Conn.App. 378 (2004) 844 A.2d 250.
The remand order is as follows:
The judgment is reversed only as to the financial orders and the matter is remanded for further proceedings to enable the court to enter new financial orders.
The rule on remand for a new trial on financial issues in dissolution proceedings as stated in Sunbury v. Sunbury, 216 Conn. 673, 676 (1990) is as follows:
The division of property and the entry of orders of alimony in dissolution proceedings are governed by General Statutes 46b-81(a) and 46b-82. Section 46b-81(a) provides in part: " At the time of entering a decree . . . dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other." (Emphasis added.) Similarly, 46b-82 provides in part: " At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other." (Emphasis added.) The only temporal reference in the enabling legislation refers us to the time of the decree as controlling the entry of financial orders. It is neither unreasonable nor illogical, therefore, to conclude that the same date is to be used in determining the value of the marital assets assigned by the trial court to the parties. "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." Brackob v. Brackob, 265 Wis. 513, 518, 61 N.W.2d 849 (1953). An increase in the value of the property following a dissolution does not constitute such an exceptional intervening circumstance. (Emphasis provided.)
At the remand hearing before this court, the plaintiff did not claim that there have been any exceptional intervening circumstances between the date of dissolution and the present time. The defendant claimed that there was an exceptional intervening circumstance in that her liabilities had increased. This court ruled that such an increase did not constitute an exceptional intervening circumstance. Sunbury held that an increase in value of property following a dissolution does not constitute such an exceptional intervening circumstance. That same rationale should be true regarding an increase in liabilities.
In entering new financial orders, this court has adopted all of the findings of fact made by the original trial court.
The court also finds the following additional facts from evidence presented before the court. From the $114,000 deposited into the plaintiff's account following the sale of the Wilton home and the purchase of the Sherman home, the plaintiff purchased a Rolls Royce with the title in the name of "Thomas P. Casey or Gloria A. Casey" at a cost of $18,500, a one-half interest in a Pontoon boat at a cost of $6,950, and a Jaguar automobile at a cost of $6,592.50. The plaintiff failed to provide the court with an explanation of the disposition of the $81,957.50 which is the balance of the $114,000 that was deposited into his account other than for approximately $27,000 that was spent on improvements to the Sherman property and to the plaintiff's planes. The increase in the value of the plaintiff's pension with American Airlines from the date of marriage to the date of dissolution was $210,823 in his A Plan Component, and $278,864 for his B Plan Component, for a total increase of $489,687. The increase in value in the defendant's pension plan during the term of the marriage was $45,310. The difference between increase in the plaintiff's pension plan and the defendant's pension plan during the course of the marriage was $444,377.
The following is a list of the items of personal property, furniture and furnishings together with the values found by this court:
1. Bedroom art minor $400 2. Gold framed mirror in living room $100 3. Leather topped desk $500 4. Tiffany type lamp $150 5. Three Frank Lloyd Wright type lamps $500 6. Brugge Tapestry $300 7. Three Brugge tapestry pillows $200 8. Two silver goblets and chalice $200 9. Brass liquor baffle caddy $15 10. Oil fish painting from Silo $2500 11. Oil painting of gaff rigged sailboat 12. Large oil painting of woman looking into mirror (combined value of items 11, 12 and 13) $1300 13. Oil painting of city building 14. Collage of ten framed prints $500 15. 6 ft. by 10 ft. (approx.) living room Persian carpet $6000 (the defendant has possession of this carpet) 16. 4 ft. x 8 ft. (approx.) Persian carpet $1500 (the plaintiff has possession of this carpet) 17. Weber outdoor grill $100 18. Patio deck furniture $100 19. Outdoor patio furniture (metal) off master bedroom $150 20. Large silver chalice $120 21. Four framed prints of 19th Century cities $150 22. 1940s Argentine silver set: tray, tea and coffee service, sugar and cream service $500 23. Serengetti table $1050 24. Green leather chair 25. Green leather sofa $2000 (combined value of items 24, 25, and 26) 26. Green leather ottoman 27. Silverware set $800 28. Computer and computer station furniture $1000 29. Book inscribed "To Tom Casey, with Admiration" from the Apollo 12 Crew (Value unknown) 30. Lithograph "Fantasy" by Alan Bean of Apollo 12, signed by the crew (Value unknown) 31. Bronze bust of Tolstoy (Value unknown) 32. Deco bar and stools for bar $2500 33. Statute of "Thinker" and base $5000 34. Cloth painting of "Rebecca" $1000 35. Plaintiff's books and the remainders of plaintiff's novel $800 36. Gypsy painting $100 37. Plaintiff's family crystal (Waterford) $800 38. Small Persian carpet $1500 (defendant has possession of this carpet) 39. Roden bust $900 40. Captain's desk $350 41. Beatle album (Value unknown)
The defendant has incurred total attorneys fees in excess of $85,000. She incurred over $50,000 through the initial trial and over $19,000 during the pendency of the appeal, and has incurred over $15,600 in a retrial of this case before the undersigned.
This court has considered the provisions of § 46b-62 regarding the issue of attorneys fees, and has considered the provisions of § 46b-82 regarding the issues of alimony, and has considered the provisions of § 46b-81 regarding the issues of assignment of property. The court enters the following orders:
ORDERS A. BY WAY OF PROPERTY ORDERS
(A) The following items of personal property, furniture and furnishings are awarded to the plaintiff:
5. Two Frank Lloyd Wright type lamps.
Of the three Frank Lloyd Wright type lamps, the defendant has one in her possession and the location of the other two are in dispute. Two are awarded to the plaintiff if and when they are located.
16. 4 ft. x 8 ft. (approx.) Persian carpet.
20. Large silver chalice.
21. Four framed prints of 19th Century cities.
29. Book inscribed "To Tom Casey, with Admiration" from the Apollo 12 Crew.
31. Bronze bust of Tolstoy.
33. Statute of "Thinker" and base.
34. Cloth painting of "Rebecca".
35. Plaintiff's books and the remainders of plaintiff's novel.
36. Gypsy painting.
37. Plaintiff's family crystal (Waterford).
39. Roden Bust.
41. Beatle album.
(B) The following items of personal property, furniture and furnishings are awarded to the defendant:
1. Bedroom art mirror.
2. Gold framed minor in living room.
3. Leather topped desk.
4. Tiffany type lamp.
5. Frank Lloyd Wright type lamp.
6. Brugge Tapestry.
7. Three Brugge tapestry pillows.
8. Two silver goblets and chalice.
9. Brass liquor bottle caddy.
10. Oil fish painting from Silo.
11. Oil painting of gaff rigged sailboat.
12. Large oil painting of woman looking into mirror.
13. Oil painting of city building.
14. Collage of ten framed prints.
15. 6 ft. by 10 ft. (approx.) living room Persian carpet.
17. Weber outdoor grill.
18. Patio deck furniture.
19. Outdoor patio furniture (metal) off master bedroom.
22. 1940s Argentine silver set: tray, tea and coffee service, sugar and cream service.
23. Serengetti table.
24. Green leather chair.
25. Green leather sofa.
26. Green leather ottoman.
27. Silverware set.
28. Computer and computer station furniture.
30. Lithograph "Fantasy" by Alan Bean of Apollo 12, signed by the crew.
32. Deco bar and stools for bar.
38. Small Persian carpet.
40. Captain's desk.
(C) All of the liabilities shown on the plaintiff's affidavit of September 26, 2002 shall be paid by the plaintiff and he is to hold the defendant harmless therefrom.
(D) All of the liabilities shown on the defendant's financial affidavit of September 26, 2002 shall be paid by the defendant and she is to hold the plaintiff harmless therefrom.
(E) The 1998 Rolls Royce shown on the plaintiff's financial affidavit of September 26, 2002 is awarded to the plaintiff. The defendant is ordered to transfer her interest in this vehicle to the plaintiff within twenty-one days after the date this decision is filed.
(F) The American Airlines Credit Union savings and checking account shown on the plaintiff's financial affidavit of September 26, 2002 are awarded to the plaintiff.
(G) The IRA Fidelity as well as the American Airlines 401K plan shown on the plaintiff's financial affidavit of September 26, 2002 are awarded to the plaintiff.
(H) The Grumman plane (Albatross) and Beach 18 plane and the plaintiff's interest in the Pontoon boat all of which are shown on his financial affidavit of September 26, 2002 are awarded to the plaintiff.
(I) The defendant is ordered to transfer to the plaintiff all of her interest in the Pontoon boat within twenty-one days from the date this decision is filed.
(J) The 1995 Jeep Cherokee shown on the defendant's financial affidavit of September 26, 2002 is awarded to the defendant. The plaintiff is ordered to transfer to the defendant all of his interest in the Jeep within twenty-one days from the date this decision is filed.
(K) The two bank accounts shown on the defendant's financial affidavit of September 26, 2002 are awarded to the defendant.
(L) The 401K plan shown on the defendant's financial affidavit of September 26, 2002 is awarded to the defendant.
(M) The defendant's interest in her American Airlines pension plan as shown on her financial affidavit of September 26, 2002 is awarded to the defendant.
(N) The plaintiff is ordered to transfer to the defendant by Qualified Domestic Relations Order $95,540 from his A Plan Component and $126,647 from his B Plan Component in his pension plan. The defendant is responsible for preparing the necessary documents to complete this transfer and the court retains jurisdiction over any disputes that may arise therefrom.
(O) The family home located at 8 Shore Drive, Sherman, Connecticut, is awarded to the defendant. The court passes title to that real estate to the defendant without any act by either the husband or the wife since it is the judgment of the court that this is the proper mode to carry the decree into effect in accordance with the provisions of § 46b-81(a). The defendant is to pay the mortgage and hold the plaintiff harmless therefrom.
(P) The plaintiff is ordered to pay to the defendant the sum of $240,000. Seventy thousand ($70,000) dollars of that sum is to be paid within twenty-one days from the date this decision is filed. The remaining $170,000 is to be paid at the rate of $1,000 per week commencing twenty-one days from the date this decision is filed and weekly thereafter. No interest is to run on either the $70,000 lump payment or the remaining $170,000 provided said payments are timely. In the event any of the payments are not made within ten days from the date due, then interest on the full unpaid amount of the $70,000 and/or $170,000 is to run at the rate of 8 percent per annum.
(Q) In accordance with the provisions of § 61-11(c) of the Connecticut Practice Book, the court finds that the due administration of justice requires and therefore sua sponte orders that the automatic stay provisions of § 61-11 be terminated for all of the property orders hereinbefore entered.
B. BY WAY OF ALIMONY
(A) The plaintiff is to pay to the defendant alimony in the sum of one dollar ($1) per year. The alimony is ordered as security for the plaintiff to comply with subparagraphs N, O and P of the property orders hereinbefore entered. It is modifiable by the defendant only in the event the plaintiff does not comply with all of the property orders entered in subparagraphs N, O, and P. It is the intent of this order that a discharge in bankruptcy by the plaintiff does not constitute payment of the property orders and that such a discharge would constitute a substantial change in circumstances for which the defendant would have the right to seek a modification of the alimony order. This order terminates upon the death of the plaintiff or the defendant or upon the remarriage of the defendant. In entering this order, the court has considered the fact that the defendant has a need for the funds to be transferred to her under subparagraphs N, O and P in order to be able to reduce the outstanding mortgage on the family residence and the fact that the plaintiff is earning substantially more money than the defendant. It is the intent of the court that this alimony provision not be dischargeable in bankruptcy.
(B) The defendant is to pay to the plaintiff alimony in the sum of one ($1) dollar per year. The alimony is ordered as security for the defendant to comply with subparagraphs E and I of the property orders hereinbefore entered. It is modifiable by the plaintiff only in the event the defendant does not comply with the property orders entered in subparagraphs E and I. This order terminates upon the death of the plaintiff or the death of the defendant or the remarriage of the plaintiff. It is the intent of the court that this alimony provision not be dischargeable in bankruptcy.
(C) The plaintiff is ordered to name the defendant as the beneficiary of the $170,000 life insurance shown on his financial affidavit of September 26, 2002. Commencing January 5, 2005, and on the fifth day of each January thereafter, he is to provide to her written proof that the policy remains in full force and effect and that she is named as sole beneficiary and that there are no loans against the policy. This obligation terminates when the plaintiff has complied with subparagraphs N, O and P of the property orders and it is intended to be in the nature of alimony and therefore not dischargeable in bankruptcy.
C. BY WAY OF ATTORNEYS FEES
1. No attorneys fees are awarded in favor of the defendant.
D. MISCELLANEOUS ORDERS
1. Any pendente lite arrearages are ordered not to merge into the judgment.
2. The parties are ordered to exchange copies of their federal and state income tax returns within fifteen days after such returns have been filed by certified mail return receipt or registered mail return receipt for so long as there is any outstanding property order and/or outstanding alimony order and/or any arrearage to any property or alimony order.
Sidney Axelrod, Judge Trial Referee