Opinion
No. FBT 09 4030456 S
September 29, 2011
MEMORANDUM OF DECISION
Jurisdiction
The plaintiff Beth Flavin, birth name Burger, and the defendant John Flavin married in South Salem, New York on October 10, 1993. There are four daughters, issue of the marriage, namely; Kendall Shaye Flavin born April 19, 1997; Aldyn Paige Flavin, born April 24, 1999; Brielle Margaux Flavin, born January 28, 2003, and Meira Safiya Flavin born February 11, 2008. This court has jurisdiction. The allegations of the complaint are proven and true. The marriage has broken down irretrievably with no hope of reconciliation.
The plaintiff is currently forty-four years old and is a homemaker. She is a college graduate, Syracuse University and earned a good income, top salary of $125,000.00, prior to starting her family. Prior to the marriage Ms. Flavin had $57,422.49 in a 401k and owned a home in Wilton, CT for which she had deposited the sum of $68,000.00. Ms. Flavin suffers from colitis, Krones disease and is currently taking Zoloft, an anti-anxiety medication. Ms. Flavin characterizes herself as the primary parent for her daughters. In fact, Mr. Flavin corroborated this fact testifying . . . that he did not know the names of . . . his daughters' teachers. Ms. Flavin further stated that Mr. Flavin first left the family in the year 2000, returned and moved out again in 2003. Mr. Flavin testified that the last time the parties were under the same roof was the spring of 2007. Ms. Flavin attributes 90% of the fault in the breakdown of the marriage to Mr. Flavin. The wife requests a 75%-25% split of the marital assets.
The defendant Mr. Flavin is forty-seven years old. He is in apparent good health. During the course of the marriage, he worked two jobs, one at Globalforce for 50 hours a week and the second as a bartender for, 36 hours a week at the Barcelona restaurant, originally located in Stamford, CT and currently at Barcelona at its Norwalk, CT location. On the average Mr. Flavin worked 80 hrs. a week to support his family. Mr. Flavin testified rather wearily that he gave the plaintiff 99 1/2% of all his income. Mr. Flavin attributes 2/3 of the fault to him for the breakdown of the marriage and is requesting marital distribution split of 55% to wife and 45% to him. Currently the defendant has a sexual assault charge pending against him in criminal court.
Parenting Plan
The parties executed a parenting plan dated April 5, 2011. The court finds that said parenting plan is in the best interests of the minor children. The parenting plan is incorporated by reference in the judgment of dissolution and made an order of the court.
Post-Secondary Education
1. The Court finds that had the family remained intact, it is more likely than not that the Defendant husband and the Plaintiff Wife would have provided support to their children for post-secondary education.
2. The Defendant Husband and Plaintiff Wife shall each contribute to each child's post-secondary education expenses, each according to this and her respective ability to pay at the time the child concerned is attending post-secondary education, for the child concerned to attend for up to a total of four full academic years at an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction, which respective contributions shall not exceed the statutory limit as defined by CGS § 46b-56c(f) or its successor provision.
3. "Post secondary education expenses" shall include any necessary educational expense, including room, board, tuition, fees, registration and application costs, books and supplies, reasonable travel expenses to and from home and school, and health insurance.
4. Custodial funds, grants, scholarships, etc. Both parties shall have full access to all funds in all custodial or UGMA/UTMA accounts held for the benefit of one or more of the four children, and shall receive credit for any and all aid, grants and/or scholarships awarded to or obtained on behalf of the children.
Funds presently held in any custodial accounts for the children with the Defendant Husband or Plaintiff Wife as custodian, shall continue to he held until such time as each child attends college.
The court shall retain jurisdiction pursuant to Conn. Gen. Stat. § 46b-56c to adjudicate disputes and to enforce the obligations of the parties pursuant to post-secondary educational orders.
Alimony and Child Support
1. The defendant's husband shall pay to the plaintiff wife unallocated alimony and child support in the amount of $8,000 per month commencing on September 2011 to be paid on the first day of each month, terminating on September 2023 or upon the death of the husband, the death of the wife, the wife's remarriage or cohabitation pursuant to statute. The term and the amount of the unallocated alimony and support shall be modifiable.
2. The plaintiff wife shall have a "safe harbor" of gross annual income in the amount of $30,000 per year.
3. Life Insurance
3.1 The Defendant Husband shall pay the premiums of and shall maintain in effect, from the date of dissolution until the youngest minor child reaches the age of 23 or graduates from post-secondary education, whichever shall first occur, his Northwestern Life Insurance policies having a combined death benefit of $1 million, with the Plaintiff Wife as sole beneficiary.
3.2 The Defendant Husband shall not hypothecate, pledge or borrow against or otherwise encumber any such policy or policies.
3.3 Upon reasonable request by the Plaintiff Wife, but not more than quarterly, the Defendant Husband shall provide written proof to the Plaintiff Wife that the policy or policies above are paid up and in effect.
3.4 If during the term of the Defendant husband's obligation to pay alimony the Plaintiff Wife survives the Defendant Husband and does not receive the full benefit of the life insurance specified in this section, then the Plaintiff Wife shall have a preferred creditor's claim against the estate of the Defendant Husband for the full amount of the insurance proceeds that were to be payable to her hereunder, less the amount of such proceeds she actually received.
Child Support
The obligations for child support provided for below shall terminate when the child concerned reaches the age of 18 or graduates from secondary education, whichever shall occur later, but in no event later than the child concerned's 19th birthday.
Health Insurance for the Minor Children.
a. The Defendant husband shall at his expense keep and maintain or cause to be kept and maintained medical insurance for the benefit of each of the minor children. The Defendant husband shall furnish the Plaintiff Wife with copies of all such policies upon her request and to provide her with proof that such policies are in force and that the beneficiaries are those ordered pursuant to the final judgment of dissolution
b. In the event the Defendant Husband's eligibility for health benefits under his current employment changes, or the Defendant Husband changes employment or becomes unemployed, the Defendant Husband shall select or provide the most comprehensive health insurance available for the minor children as closely equivalent to the current existing health insurance coverage as possible.
c. The Defendant husband and Plaintiff Wife shall share equally each minor child's unreimbursed medical and dental expenses. The term "medical and dental expenses" includes, but is not limited to, all medical, surgical, optical, dental, orthodontic, psychiatric, psychological, nursing and prescription expenses as well as hospitalization and rehabilitation.
d. The Defendant Husband and Plaintiff Wife each shall be permitted to process directly any medical insurance claims for reimbursement or payment on behalf of the children on the medical insurance that the Defendant Husband is obligated to provide hereunder.
e. For purposes of Conn. Gen. Stat. § 46b-84(e), the Defendant Husband and the Plaintiff Wife shall be the "custodial parent," and either party's signature shall constitute a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of medical services or to said party. If a party who did not pay for the medical services receives an insurance reimbursement payment that party shall promptly pay the party who paid for the services.
3.8.3 Extracurricular Activities
The Defendant Husband and Plaintiff Wife shall share equally the costs of each minor child's Extracurricular Activities (including school trips), summer Camps, Private lessons, Special Activities, Special education, and educational testing and tutoring.
Computers
The Defendant Husband and Plaintiff Wife shall confer and consult as to the purchase of and shall share equally the costs of computers for the benefit of the minor children.
Bat Mitzvahs
The Defendant Husband and Plaintiff Wife shall confer and consult as to the plans for and shall share equally the costs of each minor child's Bat Mitzvah.
Distribution of Property Real Property
1. The Defendant Husband and Plaintiff Wife are joint owners of real property located at 54 Cavalry Hill Road, Wilton, Connecticut.
a. Effective as of the date of dissolution, the Plaintiff Wife shall have exclusive possession of the said real property.
b. Effective as of the date of dissolution, the Defendant Husband and Plaintiff Wife's joint ownership of the said real property shall be as Tenants-in-common.
c. Until the said real property is sold pursuant to the provisions of this Section set forth below, the Plaintiff Wife shall be solely responsible for the expenses of the said real property, including the mortgage, mortgage interest, real property taxes, home equity line of credit and interest, utilities and routine maintenance and upkeep except that the plaintiff Wife shall pay 60% of and the Husband shall pay 40% of the costs of any major repair, which shall be defined as any single repair to the said real property that is more than $250.00.
d. The said real property shall be sold at a time agreed upon by the Defendant husband and Plaintiff Wife but shall be placed on the real estate market for sale no later than 10 years from the date of dissolution September 2011, except that the Plaintiff Wife shall have the right to "buy out" the Defendant husband as provided for below.
1) In the event the Defendant Husband and Plaintiff Wife cannot agree upon the listing agent/broker and initial listing price, each shall select an agent/broker and the two agents/brokers shall then select a third who will list the said real property for sale and determine the initial listing price.
2) At the end of each 180-day period the said real property is listed for sale, the Defendant Husband, Plaintiff Wife and agent/broker shall consult on reducing the listing price. Any reduction shall be by agreement of two of the three brokers.
3) The Defendant Husband and Plaintiff Wife must accept arty offer to purchase the property that is above 97.5% of the listing price.
e. Upon the sale of the said real property, the net proceeds of the sale, that is, the proceeds remaining after payment of all encumbrances plus sales commission plus reasonable and customary closing taxes, fees and expenses, shall be distributed as follows:
1) the Plaintiff Wife shall first receive $68,000, representing her premarital ownership of her home; and
2) the Plaintiff Wife shall also first receive credit for the reduction of principal resulting from her sole payment of the mortgage and mortgage interest from the date of dissolution to the date of the closing;
3) the balance remaining after the above shall be distributed 40% to the Husband, 60% to the Wife.
f. Plaintiff Wife's Right to "Buy Out" the Defendant Husband
At any time prior to the deadline in sub paragraph d, above, and at any time after the said real property has been listed for sale, the Plaintiff Wife can "buy out" the Defendant Husband's interest in the said real property as follows:
1) If the property has been listed for sale, the Plaintiff Wife shall have the right of first refusal to purchase the property at the listed sale price, less $68,000.
2) If the property has not been listed for sale, the Defendant Husband and Plaintiff Wife agree upon the "buy out" price, but, if unable to agree, each shall hire an appraiser and the sale price shall be the price equally between the results of the two appraisals, and, in either event, the "buy out" amount shall credit the Wife in the amount of $68,000.
g. Capital Gains Taxes
1) In the event the Plaintiff Wife "buys out" the Defendant Husband as provided for above, the Plaintiff Wife shall, upon any subsequent sale of the said real property, pay 100% of the capital gains taxes applicable to the sale.
2) Otherwise, the Plaintiff Wife shall pay the capital gains taxes attributable to the total amount she received per paragraph e, above, and the Defendant Husband shall pay the capital gains taxes attributable to the total amount he received per subparagraph e, above.
Securities, Bonds, Mutual funds, Brokerage Accounts
1. Within 15 days of the date of dissolution, the balance in the following Joint Accounts as of the date of dissolution shall be distributed 50% to the Defendant Husband and 50% to the Plaintiff Wife, and each shall hold his and her respective shares free from any and all claims by the other:
a. E*Trade
b. DWS Fund
c. Legg Mason Value Trust Fund
d. T. Rowe Price Science Technology Fund
e. Vanguard 500 Index Fund
5.3.2 The Plaintiff Wife shall transfer all her interest in the Janus Account to the Defendant Husband and the Defendant Husband shall retain said account free from any and all claims by the Plaintiff Wife.
Deferred Income Assets
1. By Qualified Domestic Relations order, the Costs of which shall be paid 60% by the Wife and 40% by the Husband, the balance in the Wife's Vanguard 401(k) account as of the date of dissolution shall be distributed as follows:
(a) The first $57,000 of the balance as of the date of dissolution shall be distributed to the wife, along with all gains and losses attributable to the said $57,000 from the date of dissolution to the date of distribution.
(b) 40% shall be distributed to the Husband along with all gains and losses attributable to the said 40% share from the dare of dissolution to the date of distribution; and
(c) 60% shall be distributed to the Wife along with all gains and losses attributable to the said 60% share from the date of dissolution to the dare of distribution.
(d) Upon distribution, each shall hold their said distribution free from any and all said claims by the other.
2. The Plaintiff wife shall retain her Legg Mason IRA free from any and all claims by the Husband.
3. The Defendant Husband shall retain his following deferred income accounts free from any and all claims by the Plaintiff Wife.
a. Fidelity IRA
b. RightNow Employee Savings Trust
Vehicles
1. Within 15 days of the date of dissolution, the Defendant husband shall transfer all his interest in the 2004 Chevrolet Suburban to the Plaintiff Wife and the Plaintiff Wife shall retain said vehicle free from any and all claims by the Defendant Husband.
2. The Plaintiff Wife shall retain her 2000 Saab free from any and all claims by the Defendant Husband.
3. The Defendant Husband shall retain his 2001 Toyota Avalon free from any and all claims by the Plaintiff Wife.
Health Insurance for the Plaintiff Wife
1. The court orders that the husband shall continue to provide and pay the premium for her health insurance for the Plaintiff Wife.
(a) The Plaintiff Wife shall reimburse the Defendant Husband for the amount of the premium for her health insurance under the Defendant Husband's policy.
(b) The Defendant Husband shall promptly notify his Health Plan Administrator of the Plaintiff Wife's status as a former spouse and shall cooperate promptly in all respects to preserve the Plaintiff Wife's rights under his policy.
(c) In the event of the Defendant Husband's termination of his eligibility under the Defendant Husband's current health insurance policy, in order to preserve the Plaintiff Wife's COBRA benefits, the Defendant Husband shall inform his employer and his health plan administrator in writing no later than fifteen (15) days after the date of termination and shall provide the Plaintiff Wife a copy of same and shall thereafter cooperate as necessary to assist the Plaintiff Wife in perfecting her COBRA rights. The Plaintiff Wife shall be solely responsible for payment of her COBRA premiums.
Liabilities
Each party shall be solely responsible for their individual liabilities listed on their respective financial affidavits. The husband is solely responsible for the household expenses previously agreed and stipulated to and made on order of the court pendente lite. Said expenses shall be paid 30 days from the date of dissolution.
Taxes
1. Exemptions
A. The Defendant Husband shall claim the exemptions for Kendall, born April 19, 1997 and Aldyn, born April 24, 1999;
B. the Plaintiff Wife shall claim the exemptions for Brielle, born January 28, 2003 and Meira, born February 11, 2008.
C. If either party is unable to reduce taxes by claiming one or more of the children's exemptions, that party shall notify the other of the possibility the other claiming the exemption.
2. The Defendant Husband and Plaintiff Wife, on an annual basis, shall exchange copies of their tax returns for so long as the Defendant Husband is obligated to make alimony, unallocated, alimony and child support or child support payments to the Plaintiff Wife. Each party shall mail to the other copies of his or her federal, state and local tax returns not more than ten (10) days after mailing same to the appropriate taxing authority. In the event that the Defendant Husband or Plaintiff Wife seeks an extension to file such return, he or she shall send to the other a copy of the extension together with a schedule setting forth all gross income earned by the party for the tax year in question.
3. For all income tax returns filed jointly by the parties though calendar year 2009;
(A) In the event either the Defendant Husband or Plaintiff Wife receives notice of an audit or tax proceeding he or she shall immediately notify the other and both shall have equal right to participate and defend.
(B) In the event either the Defendant Husband or the Plaintiff Wife shall be obligated to pay any amount assessed or determined as a deficiency, interest or penalty, he or she shall be reimbursed in full by the other party if the other party is responsible for the deficiency, interest or penalty. The responsible party shall hold the other party harmless and indemnify the other party.
Attorneys Fees
Each party is responsible for their own attorneys fees.
Judgment of dissolution enters pursuant to the foregoing memorandum of decision.
So Ordered