Opinion
No. FST FA 08 4013535 S
March 25, 2009
MEMORANDUM OF DECISION
The plaintiff wife, 50, whose birth name is Hausman, and the defendant husband, 50, married on May 18, 1986 in New York City, New York. The plaintiff has resided in Connecticut for over the twelve months next preceding the date of the filing of the complaint thereby satisfying the residency requirement. There are three children issue of the marriage. The two older children have attained 18 years of age and have graduated from high school. The parties have agreed in writing on a custody and parental responsibility plan pursuant to § 46b-56a providing for joint legal custody including the provisions of sub (d). The court finds such plan in the best interests of the minor child Ellen Charlotte and it is approved as the custodial and access orders of the court.
When married the plaintiff, a journalist, was employed by ABC News as a reporter and researcher for World News Tonight where she remained until May 1987 when their first child, Andrew, was born. She returned to work at Clifford Chance, a law firm, in 2001. In the interim she was a freelance writer for local papers including a weekly column on education issues, co-authored a book concerning Manhattan private schools, and consulted for businesses. After Clifford Chance she consulted for another law firm writing their brochure copy, a newsletter and managed their website requiring three or four days weekly. Then she consulted for another law firm providing similar work product and after a year accepted a full-time position. She remained with the firm until 2006, commuting from Westport for the final year. Currently she is employed as marketing director by Cohen Wolf earning $7,760 gross monthly and $5,590 net after taxes as well as $1,000 bonus for last year.
The defendant graduated from Case Western Reserve in 1980 and received an MBA from Columbia in 1983. He began as an associate with Prudential Securities and after a number of promotions became a managing director in 1997 with salary between $150,000 and $200,000 with annual bonus of $450,000 for 1997. The following year he co-founded Orama Partners. As managing director his base annual salary was between $325,000 and $350,000. He left Orama in 1999 and received a severance of $650,000 after an arbitration at NASD. After a hiatus of several months his next position was with the Family Office as chief financial investment officer paid $200 hourly for 40 hours weekly. In July 2005 he joined Muus Asset Management Company and was shortly made a managing director. His base salary was $150,000 and received a bonus of $80,000 for 2006 paid the following year. For 2007 his total W-2 compensation was $318,000. In May 2008 he stopped going to work at their office but was paid $116,666 through July. When he left, based on an agreement with the president reached a year earlier, he was the last leave. No replacements were hired.
The defendant has been seeking employment since last summer by utilizing email, telephone and about 20 headhunters. He obtained three interviews. The most fruitful was with Aviva that discussed a position in Des Moines, Iowa with salary between $100,000 and $120,000 annually. The defendant's counter offer of $135,000 but middle ground was not reached. He explained the offer was not enough to induce him to leave home. Under these circumstances the court does not conclude he is evading employment.
The court finds his explanation of how he prepares different versions of his resume to highlight appropriate skills of his indicative of his employment search. In his own words:
Well, it's a tough market and I'm competing against a lot of people who were recently on Wall Street, so I have to try to look as close to what they are looking for as I possibly can. I'm highlighting skills and experience as opposed to — you know, it's real skills and real experience and just changing the emphasis of the focus.
The parties sold their marital home last year with the net proceeds of $614,045 being held in escrow. Each party is residing in rented premises.
The plaintiff lists additional assets on her financial affidavit of:
JPM Chase bank accounts $ 12,730 Investments $120,178 Retirement accounts $ 28,360 50% interest in artwork $ 16,100 1984 Mustang LX convertible $ 1,000 Apartment rental deposit $ 6,500 Ellen's 529 plan $ 1,323 Retainer balance with her lawyers $ 2,000 Total $188,191Excluded from the listing are UTMA accounts for Margaret and Ellen.
The plaintiff lists liabilities of:
Barbara Sonnenfeldt (legal retainer) $15,000 American Express $ 4,952 Visa freedom card $ 524 Chase Visa $ 812 Total $21,288The defendant lists additional assets on his financial affidavit of:
Household furnishings, etc as undetermined $0 JP Morgan Chase accounts totaling $ 3,405 Stocks, bonds mutual funds 50% $ 137 Merrill Lynch IRA $128,683 Merrill Lynch SEP $182,553 Merrill Lynch IRA (ending 29534) $ 60,270 Total $375,048Excluded from the listing are college savings plans for Margaret $27,561 and Ellen $42,516.
The parties made sincere efforts to save the marriage through counseling particularly during the three or four years immediately prior to the start of this suit. The plaintiff admitted that she did not communicate as well as she should have. The defendant failed to display affection toward his wife who became depressed about their relationship. About two years ago the plaintiff told her husband that she had "a fling with someone" but testified it was a desperate attempt to get his attention. The effort boomeranged. The claim, whether true or not, was the final breakdown. The court finds each party equally responsible for the failure of their marriage.
The child support is based on earning capacity since the defendant is unemployed. One of the elements is his "employability" in applying his skills and work experience in determining his capacity. That term also includes a finding that work is available. The defendant offered to accept a position, as described above, for $135,000. His last actual job was at a salary of $200,000. The court concludes that the defendant has a present earning capacity of $150,000 less taxes or net of about $104,000 annually or $2,000 weekly. The court also finds that the plaintiff's actual earnings reflect her current earning capacity monthly of $5,700 net after taxes or $1,315 weekly. Their combined weekly net of $3,315 is apportioned 60% to the defendant who shall pay $257 weekly child support to the plaintiff ($429 x 60%) as provided by the guidelines.
The plaintiff has claimed $70,000 received by her in 1998 from her grandparents should be segregated and set aside for her in the judgment. Generally money is fungible unless it is shown that the contribution to the acquisition and preservation in value can be assigned primarily to one party, Golden v. Mandel, 110 Conn.App. 376 955 A.2d 115 (2008). The funds in this case received by the plaintiff during the marriage were devoted to supporting the family as were the funds generated by the defendant, North v. North, 183 Conn. 35, 438 A.2d 807 (1981). The exception is the one thousand Thomson Acquisition, Inc. shares that shall be awarded to the plaintiff.
Having reviewed the evidence in light of the relevant statutes and case law and having evaluated the testimony of the witnesses the court renders judgment dissolving their marriage on the ground of irretrievable breakdown with the following orders as part of the decree. A copy is attached hereto.
1. The parties' Parenting Plan dated January 29, 2009 is approved and incorporated in the judgment as part thereof. It is found to be in the minor's current best interests.
2. The defendant shall pay $257 weekly child support to the plaintiff. A wage withholding order is entered. The court retains jurisdiction to enter educational support orders pursuant to Section 46b-56c as petitioned by the defendant. The plaintiff shall continue to maintain medical insurance, for the children so long as they remain eligible, through her employer's group coverage. Uninsured medical bill balances shall be divided as called for by the guidelines. The plaintiff shall not hamper the defendant's COBRA medical coverage option.
3. The defendant shall pay $1 per year periodic alimony to the plaintiff until her death, remarriage, or future court order. Conn. Gen. Stat. § 46b-86(b) applies to this order.
4. Half of the proceeds of the sale of the marital home shall be paid to each party.
5. Each party shall keep the checking and savings accounts each has listed on their respective financial affidavits.
6. The parties shall equally divide the Merrill Lynch CMA account; the Fidelity-Disney WW Services 401k account; the Merrill Lynch IRA (1041) account; the Merrill Lynch SEP (1042); the Merrill Lynch IRA (29534); and any other deferred compensation or retirement account held by either party. The intent of this order is to equalize the deferred items.
7. The plaintiff is awarded the glass bedside table, the Zupan oil painting, the 1999 Land Cruiser and any other tangible personal property currently in her possession.
8. The defendant shall retain the Mercedes auto and any other tangible personal property currently in his possession.
9. Each party shall pay their own debts and hold the other party harmless.
10. The court makes no order concerning the college accounts each party has created.