Opinion
No. FA09 401 02 98
December 28, 2010
MEMORANDUM OF DECISION
The plaintiff whose birth name was Elisabeth Slayne, and the defendant intermarried at Blauvelt, New York on November 16, 1996. There are four children issue of the marriage, namely Steven C. Emslie date of birth 6-24-98 (12); Abigail R. Emslie, date of birth 5-17-00 (10); Andrew J. Emslie, date of birth 11-17-01 (9); and Madison P. Emslie, date of birth 8-3-08 (7).
The court has the requisite jurisdiction. The parties' four minor children are recipients of State medical insurance pursuant to the HUSKY program.
Both parties are unemployed. The plaintiff is a SSDI recipient and her total net weekly income is $418.60. In addition the children are SSDI recipients receiving $186.05 so the total amount presently available to the plaintiff and the four children is $604.65.
The defendant has had numerous surgical procedures. The defendant, based on the evidence submitted at the present time, is clearly disabled. He has extensive back and neck pain that has resulted in these surgeries. He has difficulty sitting secondary to the pain. The likelihood of any substantial improvement that would allow for full-time employment is remote. He has no income but has an application for disability payments pending that to the date of this trial has not been acted upon.
The plaintiff seeks financial relief from the paternal grandparents. The children's paternal grandparents have, over a period of years, contributed to their grandchildren's support by giving the parents funds to assist them during periods when little or no funds were being generated by the parties. In Luso v. Greenberg, 101 Conn.App. 739 the court found that the recurrent gifts to the father were income for purposes of calculating the presumptive child support. In the present case while there is no written evidence that the advances were loans the clear purport of the grandparents' testimony was that they were loaning sums of money to their son to sustain his family during hard times. While the grandfather is a retired bank president the court cannot compel him to provide funds for his grandchildren. Based on the evidence submitted on the present state of the record to order child support at this time would clearly lead the defendant to a cycle of contempt and its dire consequences.
The plaintiff, despite her serious economic plight, claims that if she is awarded the real estate she will keep a roof over the family's head. The real estate is the subject of a pending foreclosure action and a substantial mortgage arrearage is owing.
This matter has been pending before the court for approximately 18 months and has been the subject of many motions and hearings related to custody and visitation. The only major asset of the parties is the family home located at 8 Woodland Drive in Bethel. The plaintiff claims its equity is $70,000 and the defendant claims its equity is $94,000.
The court finds that the plaintiff's valuation is more accurate and adopts $70,000 as the equity value. The court orders the transfer of the real estate to the plaintiff.
The testimony of the guardian ad litem is revealing and brings much to light. There is no parental communication so joint custody would be futile. The parties should have coparenting counseling that might solve some of the problems.
In view of the limited resources it would serve no purpose to assess fault.
Orders
The court has carefully considered all of the criteria set forth in 46b-56, 46b-81 and 46b-82, Connecticut General Statutes in entering its orders. It has also considered the testimony of the guardian ad litem and other witnesses.
1. The marriage has broken down irretrievably and is dissolved.
2. Each party is awarded $1.00 per year as alimony for a period of 10 years. At the end of said 10-year period or in the event of plaintiff's remarriage or the death of either party this obligation shall terminate.
3. Child Support and Spousal Support
The parties shall equally pay for unreimbursed medical, dental, optical, psychological and prescription expenses of the minor children, except that any non-elective medical, dental or orthodontical procedure costing in excess of $500.00 shall be agreed between the parties prior to authorizing such work to be done, and neither party shall unreasonably withhold his consent for same or for orthodontic work, if deemed necessary. Both parties shall provide medical and dental insurance for the benefit of the minor children if it is available to them at a reasonable cost of no more than 4% of each of the respective parties' weekly net income. Unreimbursed medical and dental costs for the minor children shall be equally divided. Connecticut General Statutes 46b-84(e) is incorporated in this judgment.
Any obligation subsequently ordered to support each minor child terminates upon:
a) Each child attaining the age of 18 or 19 years of age if the child is attending high school;
b) The death of the child;
c) The marriage of the child; or
d) The death of either parent, whichever event first occurs.
4. The court shall retain jurisdiction over post-secondary school educational support pursuant to Connecticut General Statute 46b-56c.
5. Any tax refund due to either party shall be used for child support.
6. Medical Insurance and Expenses
Each party shall hereafter be responsible for the costs of their own health insurance and medical expenses.
As long as health insurance coverage is available for the children as a result of the wife's disability she shall maintain same.
7. Life Insurance
Each party shall keep in place the existing amounts of life insurance coverage as reflected on their respective financial affidavits naming the children as sole beneficiaries of same until the youngest child reaches age 23.
The husband shall, upon written request, provide the wife on an annual basis, or in the event of exigent circumstances, provide information from his insurance carriers setting forth to the required insurance under this agreement and maintenance of same.
Each party's signature on the agreement shall constitute full and unqualified authorization to the other party to obtain any information directly from the other party's life insurance carrier(s) pertaining to life insurance coverage.
8. Real Property
The real property of the parties is currently under an order of foreclosure by sale in late June 2010. The husband shall transfer his interest in same to the wife immediately and she shall be responsible for all financial obligations related thereto.
9. Personal Property, Bank Accounts, Securities and Household Effects
All personal property now in the possession or control of the husband shall be his sole exclusive property, and all personal property now in the possession or control of the wife shall be her sole and exclusive property.
Except as herein provided, the defendant acknowledges that he has no right, title, or interest in any of the bank accounts or securities now in the name of the plaintiff, whether in the sole name of the wife or in trust for another; and the plaintiff acknowledges that she has no right, title, or interest in any of the bank accounts or securities now in the name of the husband.
Each party shall retain the motor vehicles which they currently own and operate, free from claim by the other party and shall hold the other harmless from any debts in connection with said vehicles. The parties shall cooperate in executing any documents required in order to transfer the vehicles into the proper name.
10. The defendant shall retain his retirement plan free and clear of any claims of the plaintiff.
11. Debts of the Parties
Subject to the provisions of the agreement, the wife represents that she has not incurred, nor will she at any time in the future, incur any debt for which the husband, his legal representatives, or his property is now of may become liable, and the wife further covenants at all times to keep the husband free, harmless, and indemnified from any and all debts heretofore or hereafter contracted by her.
Subject to the provisions of the agreement, the husband represents that he has not incurred, nor will he at any time in the future, incur any debt for which the wife, her legal representatives, or her property is now or may become liable, and the husband further covenants to keep the wife free, harmless, and indemnified from any and all debts heretofore or hereafter contracted by him.
Each party shall pay their debts as listed on their financial affidavits, and shall hold the other party harmless and indemnified therefrom, except as stated to the contrary in this agreement. Each party shall have the right to file bankruptcy regarding all debts.
All joint credit cards, if any, will be closed by the parties.
The debt owed on the disabled automobile to taxing authorities shall be the defendant's obligation.
12. The husband shall contribute $5,000 to the plaintiff's attorney within six months of the date of this order. The court finds that defendant has both delayed and obstructed these proceedings without justifiable cause.
13. Taxes
Each party hereby warrants and represents to the other party that to the best of his knowledge and belief, all federal, state, and local income taxes on all joint returns heretofore filed by the parties have been paid, and that no interest or penalty is due with respect thereto, and that no tax deficiency proceeding is pending or threatened thereon other than the tax levy and penalties which may exist per prior assessments.
If, in connection with any joint federal, state, or local income tax returns filed by the husband and wife, there is a deficiency assessment, the party who receives notice thereof shall notify the other party in writing and provide copies of such deficiency assessment and all documents in connection wherewith forthwith. The amount ultimately determined to be due thereon, including penalties, interest, or other charges, shall be paid by the party who has caused such obligations as a result of the failure or neglect to disclose any of his/her income or incorrect statement of expenses or deductions associated with his/her business or otherwise which should have been included in such returns. The party who is responsible for such additional obligation shall indemnify and hold the other harmless against any such assessment, penalty, attorneys fees, or interest.
The parties acknowledge that they each have the right to contest the assessment imposed by the Internal Revenue Service, if any, in connection with any deficiency assessment related to their joint income tax returns. Each party shall pay all of their own accountant fees, attorney fees, and costs actually incurred in relation to such contest. If despite such contest, any deficiency assessment, including penalties, interest or other charges, remain imposed by the Internal Revenue Service, the party who is the cause of such obligations shall pay the professional fees incurred by the other party in connection with such contest.
14. Escrow Monies from Medical Insurance
The approximately $154,000 held in escrow from medical insurance payments shall be paid immediately to the medical providers.
Custody
Sole custody is hereby granted to the mother. Supervised visitation rights to the father are as follows: in regards to the child Andrew, every Saturday from noon until 8:00 p.m.; the three other children shall only be seen by their father in a therapeutic setting.
15. Custody and Visitation
The major and most important issue that the court must decide is the issue of custody and visitation. As previously set forth herein both parents have serious and severe physical limitations. At the present time husband's limitations are probably more acute. There has been no investigation by the Family Relations Division but the court has had the benefit of the testimony of the guardian ad litem. The children are 12, 10, 9 and 7.
Sole custody is awarded to the mother with visitation to the father as spelled out herein.
Father shall have Andrew on alternating Saturdays from 10:00 a.m. to 8:00 p.m. on Sunday. He must have a valid drivers license and operate an insured vehicle and provide proof of same to the mother. In the summertime commencing the third Friday of June through the day after Labor Day, the father's parenting time with Andrew shall commence on Fridays at 4:00 p.m.
Father shall visit with Steven, Abigail and Madison in a therapeutic setting with these three children's therapist or in an approved, supervised visitation setting. The supervised visit shall be for a period of no less than one and one-half hours at least two times per month. Father shall be responsible for any costs of supervised visitation and shall pay for one-half of any sessions with the therapist. Either party may seek to have the court review the reunification process no sooner than eight months from the date of judgment. Mother shall deliver the children to the therapeutic setting or the place where the supervised visitation is to occur. Father shall not appear at any of the children's school unless he obtain written invitation from the school authorities. Report cards, attendance reports, and notice of disciplinary (if any) shall be provided to both parties.
The children shall have access to telephones at all reasonable hours for them to call either parent if they so desire. Neither parent will pressure any of the children to call either of them. The father shall only call the wife's residence or cell phone on Mondays, Wednesdays and Fridays at 7:30 p.m. However, if the mother is unavailable to have the children at home at such times, she will inform the father via email of her unavailability and provide an alternative time for the father to call the children. If the children are home when the father calls, but they refuse to answer the call, the mother shall send an email to the father informing him of same.
All telephone calls between the children and either parent may be recorded and used as evidence in future hearings. The parties shall do their best not to let any of the children know the calls are being recorded nor shall they discuss this issue with any of the children. The children are to be insulated from the disputes of the parents. Neither parent shall attempt to utilize any of the children to compel any of the other children to talk on the phone beyond a simple request to see if any of the other children wish to talk to the parent.
Each parent shall maintain an email account that they check at least two times on two different days each week. The parties shall keep each other informed of any changes to their email addresses via email only within 48 hours of any changes.
16. Miscellaneous Orders
The defendant is obligated and ordered to pay the sum of $20,250 as a result of pendente lite orders that were previously entered and not complied with.
The parties shall participate in co-parenting counseling, the counselor to be selected by Attorney Klein and overseen by her. Each party shall be equally responsible for any sum due the guardian ad litem.