Opinion
No. FA 07-4106433
November 26, 2008
MEMORANDUM OF DECISION
The parties appeared represented by counsel. All statutory stays having expired, the court has jurisdiction.
Having heard the evidence, the court finds as follows.
The defendant and the plaintiff, whose maiden name was Schell, intermarried at Stonington, Connecticut on December 29, 1993; that the defendant has resided continuously in Connecticut for a period of one year next preceding the date of the filing of this complaint; that there are no minor children issue of the marriage of the parties; that there were no other minor children born to the plaintiff since the date of the marriage of the parties; that the marriage has broken down irretrievably; that there is no hope of reconciliation and that no state agency is presently contributing to the care or welfare of the parties.
The plaintiff, who was born on May 3, 1959, is a graduate from Wellesley College. She majored in economics and was employed in many advertising agencies in various executive positions but soon left each position because of, as she stated, creative differences. While employed she earned as much as $110,000.00 annually. During her employment, plaintiff accumulated savings in IRAs.
On the commencement of these proceedings, plaintiff's IRAs were worth $300,000.00 but since then she has used some of said proceeds and said IRAs are now worth $187,181.70. (See Exhibit 11.) Although some of the IRAs were premarital, she was unable to state with any degree of probability said premarital amount.
Plaintiff's last employment was in 1995. Since then she has been unemployed except for a short period when the defendant obtained a job for her. Plaintiff claims she has tried to find employment but was unsuccessful.
Plaintiff testified that she suffered from fever, hair loss, itching, skin eruptions and burns, all of which affected her emotionally to the extent that she could not work. However, plaintiff never saw doctors about her problems and medicated herself with over-the-counter medications.
The plaintiff did not offer any reports from any doctor about her ability or inability to work. Further, the plaintiff did not cooperate in taking a scheduled vocational evaluation although the defendant provided her with air fare of $500.00 to come to Connecticut from California for such evaluation. Her comment was the evaluation could have been done over the telephone.
The defendant who was born December 19, 1959 and who appears to be in good health graduated from Amherst majoring in Communication Studies. He had various employments and now is self-employed with two businesses, William McDonald and Yellow House, LLC. According to his financial affidavit he has a gross weekly income of $3,076.00 and a net weekly income of $1,712.00.
Plaintiff testified, inter alia, the marriage began to break down in 1997 when defendant admitted to having six extramarital affairs; that defendant threatened and abused her but never struck her; that he told her to leave so she did. Further, plaintiff testified that she was responsible for the breakdown; that she always felt a vague sense of unease about marrying the defendant and that she had an extramarital affair while living with the defendant.
Defendant testified, inter alia, that at the time of their marriage they agreed not to have children; that they would be professionals; that, notwithstanding said agreement, plaintiff did not do her share; that plaintiff wouldn't work after she was laid off in 1995; that she did not contribute financially to the marriage and that he did not ask plaintiff to leave and that although there was testimony about the plaintiff's excessive drinking, the defendant admitted that was not a significant factor in the breakdown. He appeared to blame the breakdown more on her failure to share in the responsibilities of the marriage.
Defendant admitted that he had one extramarital affair while living with the plaintiff.
On July 1, 2008 defendant filed a motion to modify the alimony pendente lite of $400.00 per week because of a substantial change in circumstances of the defendant. Defendant was in arrears one week in December 2007 and has not paid since.
The plaintiff has been living with James White at least since January 2008. He has been paying most of her living expenses. Accordingly, the court finds that the plaintiff's right to alimony terminated on July 1, 2007 because of her cohabitation with James White pursuant to Connecticut General Statutes. Accordingly, defendant is found to be in arrears in the sum of $10,800.00.
Neither party is seeking an award of alimony.
In March 1993 the parties purchased real estate located at 149 Water Street, Stonington, Connecticut for $362,000.00. The plaintiff testified that she paid the down payment on said property but does not recall the amount. In 1996, the parties purchased real estate at 11 Grand Street, Stonington, Connecticut.
After plaintiff was laid off from her employment in New York, she vacated her apartment there and moved back to Stonington at 149 Water Street. While there, she claims she made substantial improvements to the property.
Defendant also testified that he paid and/or made repairs and improvements to both properties. See Defendant's Exhibit K.
After plaintiff was terminated from her employment in 1995 to the time she left the defendant in 2005, the defendant paid most if not all of the expenses of carrying both properties with very little contribution by the plaintiff.
James Blair, a qualified real estate appraiser, appraised 149 Water Street, Stonington and estimated the fair market value of said property was $900,000.00. On March 21, 2008 he estimated the market value of 11 Grand Street, Stonington to be $358,000.00. Pursuant to a letter from the defendant dated May 28, 2008, listing many items concerning 149 Water Street; which he felt Mr. Blair might not have noticed on his inspection on May 21, 2008. Mr. Blair reduced his estimated market value of said property to $850,000.00. See Plaintiff's Exhibit 15.
Then by letter dated November 4, 2008, Mr. Blair lowered the estimated market value of 149 Water Street to $782,000.00 and 11 Grand Street to $329,500.00. See Defendant's Exhibit A.
Both parties agreed that presently the existing mortgage on said Water Street is $170,936.00 and said Grand Street is $222,788.00.
Based on said appraisal and existing mortgages, the equity in both properties is $717,776.00.
The other marital assets of the parties include plaintiff's IRA totaling $182,181.70; see Plaintiff's Exhibit 11, and other personalty included in her financial affidavit of $134,000 plus a Bank of America checking account of $8,364.46.
The defendant lists other marital assets on his financial statement of personal property totaling $10,000.00; bank accounts of $1,838.00, Fidelity account of $3,679.00 and IRA accounts totaling $14,734.00 and a Wells Fargo account of $1,601.00.
Plaintiff lists debts totaling $22,273.07. Defendant lists debts of $48,542.00.
Based on the testimony presented, it is clear that the marriage of the parties has broken down irretrievably with no hope for reconciliation. The court finds the plaintiff more at fault for the breakdown than the defendant. Accordingly, a judgment dissolving the marriage is awarded to the parties on the grounds of irretrievable breakdown. The court further finds that the defendant contributed more to the creation and enhancement of the real estate located at 149 Water Street and 11 Grand Street in Stonington, Connecticut, than did the plaintiff.
After considering the pertinent Connecticut General Statutes, the evidence presented and the court's findings, it is ordered that:
1. No alimony is awarded to either party.
2. The defendant shall pay to the plaintiff within 90 days $10,800.00, the amount the court finds he is in arrears on the pendente lite order of alimony.
3. The defendant shall keep ownership of 149 Water Street and 11 Grand Street in the town of Stonington provided he pays to the plaintiff the sum of $250,000.00 within one year of the date of judgment of the dissolution decree. He shall evidence said obligations with a promissory note payable to the plaintiff on or before one year from the date of judgment. Said note is to be without interest and secured by a mortgage on both aforesaid real estate; said mortgage to contain the usual conditions contained in mortgages. If the defendant defaults in paying said promissory note by the due date, interest shall run on the balance of the note at 5% per annum until paid in full.
The defendant shall, within a reasonable period of time, have plaintiff's name removed from said mortgages. Further, he shall hold her harmless on said mortgages at the time he gets title and he shall assume all obligations of ownership.
If the defendant desires to sell any of said properties to raise money to pay the plaintiff, plaintiff shall cooperate with the defendant in said sales.
The plaintiff shall transfer to the defendant by quitclaim deed any and all interest she has in said real estate at the time defendant gives her said promissory note and mortgage.
4. The plaintiff shall keep all her IRAs, jewelry and bank accounts and further she shall pay the debts listed on her financial affidavit and keep the defendant harmless therefrom.
5. The defendant shall keep all his bank accounts, IRA accounts, his Fidelity account and pay all the debts listed on his financial affidavit and keep the plaintiff harmless therefrom.
6. Any personal property not disposed of herein shall be divided by the parties. If unsuccessful, this issue shall be submitted to binding arbitration with an agreed arbitrator. The cost of arbitration shall be divided equally by the parties. The court will retain jurisdiction.
7. Bach party shall pay their own attorneys fees.