Opinion
No. FST FA-06-4008939S
November 21, 2007
MEMORANDUM OF DECISION
The wife, whose maiden name was ELYSE PUMA, and the husband, FIORE SCRENCI, were married in Brooklyn, New York, on April 11, 1987. It was a first marriage for each of them. They are the parents of three children, all under the age of twenty-three, to wit: ALESSANDRA N. SCRENCI, born June 14, 1989; MICHAEL G. SCRENCI, born October 5, 1990; and DANIELA R. SCRENCI, born December 5, 1994. The eldest is currently a college freshman, the next child is a senior at Greenwich High School, and the youngest is in seventh grade. No other children have been born to the wife since the date of the marriage, and neither party has received any aid or assistance from the State of Connecticut or any subdivision thereof during the course of the marriage. Both parties and the children are currently residing in the marital residence at 25 Innis Lane in Greenwich.
The wife is 52 years old and in good health. She has a bachelor's degree in education from C.W. Post University, but she has had very limited work experience outside of the home. The wife testified that, prior to the marriage (1979 through 1987), she worked for a construction company established by her father in Brooklyn called Epic Contracting Corporation ("Epic"), as a "secretary and gofer." Later on, during the marriage, she would return to that job for a brief period, earning $500.00 per week for one day's work. In addition, she told the court that during the marriage she had also worked approximately eleven weeks as an office temporary through an agency. However, she emphatically told the court that her primary job was being a "full-time mother" to the children. Her Financial Affidavit on file with the court indicates that she regularly receives $2,000.00 per month as a gift from her parents, and she told the court that this sum is an average based upon the use of her mother's credit card. At the time of the marriage, she had an IRA worth approximately $20,000.00, together with seven parcels of real property which had been purchased for her by her father prior to the marriage, for about $5,000.00 each, and which were sold during the marriage for between $30,000.00 and $40,000.00 each. The proceeds were turned over to the husband after each sale. Her father (through Epic) has contributed to her IRA at Morgan Stanley, which is now worth $646,458.00.
The husband is 50 years old, and he is also in good health. At the time of the marriage, he was running a computer store in Rome, Italy, and playing rugby for the Italian national team. His interest in the business was sold about the time the parties moved back to the United States, and the proceeds amounted to approximately $150,000.00. According to him, these funds were deposited in the family account. He has a bachelor's degree in Business Administration from American University in Rome, as well as other studies, including three years of medical school. While in the United States, he worked for the wife's father, Albert Puma ("Puma") for one to two years, but walked off the job without notice after being criticized by his father-in-law for coming to work late one day. He told the court that the criticism was demeaning since made in front of the office staff. After moving to Greenwich from Brooklyn, the husband began renovating and constructing residential property on speculation. At the same time, the parties built and operated a large play/entertainment center called "Adventure Kids" in Greenwich. Since January 2007, the husband has been employed by Archimedes Builders, and he reports his gross income on his Financial Affidavit as $10,416.00 per month, with a net income of $6,771.00, after accounting for estimated taxes. He reports no other source of income.
Throughout the entire marriage, with the brief exception of a rental in Greenwich, the parties have owned their own residence. In 1987, shortly before their marriage, they purchased a home in Italy for approximately $250,000.00 with funds coming from the wife's father. There was no mortgage on the property, and title was held in both names. The home, along with its contents, were sold five years later when the couple moved back to the United States. The net proceeds from that sale, after taxes, as well as the proceeds from the sale of the interest in the husband's business, amounting to total of approximately $460,000.00, were deposited in the joint family account at Manufacturers Hanover. However, according to the wife, these funds were under the exclusive control of the husband. Upon relocating to the United States, the parties moved to 4070 Ocean Avenue, Brooklyn, New York, a short distance from the wife's parents. As was the case in Italy, the couple purchased the home, mortgage-free with $870,000.00 provided, once again, through the efforts of the wife's father. An additional $300,000.00 was expended renovating the dwelling, those funds also coming from the same source.
In 1994, the Brooklyn home was sold, and the couple moved to Greenwich, Connecticut, where they rented a home at 68 William Street. According to the wife, the sale proceeds from the Brooklyn home were also retained by the husband. In 1999, the couple purchased a home at 11 Grant Avenue, Greenwich for $750,000.00, using a combination of family funds and a mortgage. Title was taken in both names, but was later changed to that of the wife shortly before its sale in 2001. The husband testified that the title transfer took place in order to get a bridge loan, since title to the new home would be in the wife's name alone. This home, which had a $500,000.00 mortgage, was sold for $1,450,000.00, and the present home at 25 Innis Lane, Old Greenwich was purchased for approximately $755,000.00. Once again, Mr. Puma provided $250,000.00 through Epic Contracting Corporation for renovations and improvements. Title was taken in the name of the wife, by agreement of the parties. By agreement, the parties offered evidence as to the value of 25 Innis Lane in the form of written summary appraisal reports (Exhibits #7 and A), without testimony by the preparers. The wife's appraiser found the fair market value of the property to be $1,460,000.00. On the other hand, the husband's appraiser found the fair market value to be $1,600,000.00. The wife, herself, testified that in her opinion, the fair market value was $1,300,000.00. According to the financial affidavit of the husband, the property is worth $1,800,000.00.
During the years 1995 and 1996, the parties started up and ran a business in Greenwich called "Adventure Kids." According to the testimony of the husband, the cost of this venture was about $550,000.00, and it was funded with a $100,000.00 mortgage, $200,000.00 from monies originally set aside for the education of the two oldest children, and the balance of $250,000.00 from marital funds. The parties later sold the business for $230,000.00.
As stated earlier, about 1979, well prior to the marriage of the parties, Mr. Puma formed a company called Epic Contracting Corporation in which the wife held 75% ownership interest, and her mother held the balance. From 1955 through the formation of Epic Contracting Corporation, he had owned and operated a successful construction company called A. Puma Construction, which specialized in municipal work. As a practical matter, because of his experience and expertise, he continued to operate the new business, however, 75% of its profits were held, and ultimately distributed to the wife for the benefit of her family. The monies were reported on the income tax returns of the parties and all taxes thereon were paid. The court believes that the bulk of any funds has already been distributed, with a small balance of approximately $5,000.00 being held in the company checking account. While the company has ceased to operate and there are no pending contracts, Mr. Puma told the court that he has not dissolved it just in case his daughter would like to operate it in the future.
The parties entered into a "Stipulation Re: Custody and Parenting Schedule" dated March 2, 2007 (#133.10), which is on file with the court. The wife has asked that it be incorporated by reference in the court's decree. The husband has told the court that he believes that he should have more parenting access time than was previously agreed to. The court listened to the parties and their counsel, and it gave each of them the further opportunity to file a request regarding parental access as part of their Claims for Relief following the close of the evidence. During the trial, each party told the court that the other was a good parent. The husband described himself as a "hands on" dad. The wife describes herself as a "full-time mom by agreement of the parties."
In addition to the family home, the parties are the owners of a 17' Boston Whaler, and the husband has a one-third interest in a condominium located at 53 Putnam Park, Greenwich. That home is currently occupied by his parents, and he claims that his net interest is valued at $121,000.00.
As to the breakdown of the marriage, the wife told the court that, just prior to filing this action, the distinguishing feature of the marriage was the husband's domineering and demeaning attitude toward her, and the fact that all of the family assets were within his effective control. She told the court that he would routinely show off his cooking and cleaning skills in front of the children, ostensibly to be helpful, but in actuality to undermine her role as homemaker. She said that her husband acted as a "know-it-all," that he made all decisions, wrote all the checks to pay bills, and that she was made to feel "worthless and useless." The wife testified that despite the fact that the accounts were in both names, she had no access to the check book or credit cards during the marriage. According to her, the husband doled out $400.00 a week for her to buy groceries and to pay the cleaning person, and that since the commencement of the action, she has had the use of her mother's credit card, charging, on average $2,000.00 per month. The court found this testimony to be credible.
There was no credible evidence offered as to any philandering or physical violence by either party. The parties even tried counseling, unsuccessfully as it turns out. However, the problem that the court sees is that on the one hand she married a strong-willed, thin-skinned man, and on the other hand, she would not (or could not) break free of the influence of her father, another strong-willed male — always a tough dilemma at best. Her response to this situation at first was passive, trying to please both individuals and to create no waves. Neither man would appear to have cut her any slack, each vying for her loyalty. In the end, she chose her father, and not herself as she would like the court to believe. By her own testimony, she indicated that she speaks with her father twice a day, and in addition, rides and runs with him on a regular basis.
The husband is understandably angry, and, among other things, he has single-handedly estranged his children from their paternal grandparents. For this, there is absolutely no excuse whatsoever. He places the blame on his wife's father, calling him a "major factor" in the breakdown. He says that he told his wife that her father "loomed too much over the marriage." The court believes him. However, he should not be heard to complain too loudly, since he accepted the benefit of approximately $1,500,000.00 without exhibiting one iota of sympathy toward his wife as a result of her dilemma. He forced her to make a choice. With the exception of some monies he brought to the marriage from the sale of his interest in a business in Italy, virtually all of the funds to purchase homes, improve them, build spec homes, and the business called "Adventure Kids," came through the efforts of her father and/or with borrowed monies.
Much was made regarding whether or not certain funds have or had not been set aside for the benefit of the minor children, in particular, their college education. First, the evidence clearly shows that the husband and Mr. Puma had a conversation regarding the disposition of all or a portion of the proceeds from the sale of the Italian home shortly after the couple returned from Italy. The husband offered to give back the proceeds, while Mr. Puma said that he should put them in a college fund for the then two minor children. The husband did so, but there was no credible evidence offered as to what if any legal/financial vehicle was used by him. He later testified that, in any event, he utilized these monies to invest in "Adventure Kids" and the funds were never replaced. In her proposed orders, the wife asks the court to make a provision to, in essence, replace these funds.
Secondly, Mr. Puma returned to court on November 8, 2007, to testify as to the establishment of New York UTMA accounts. In brief he referred to the conversation with the husband after the couple's return from Italy regarding the setting aside of monies for future college expenses for the parties' then two children, Alessandra and Michael. Although the evidence is not clear as to exactly what if any provision the husband made in this regard, whether formal or informal, it is clear from his own testimony that he used those funds to invest in the business called "Adventure Kids." Since the husband failed to maintain the funds for the benefit of the two oldest children, Mr. Puma and his wife set up an UTMA account and a small Roth IRA for Alessandra, and an UTMA account for Michael. They added to these from about 1993 through 2000. At present, the UTMA accounts have approximately $148,000.00 each and the Roth IRA about $4,000.00. He testified quite emphatically, that these were gifts to the children to be enjoyed when they turned twenty-one, and not educational funds per se. On cross examination, he told the court that he did not disclose the existence of these monies to the grandchildren, but would do so "at the right time." He also said that they would provide a source of funds for the grandchildren if they had none. Likewise, after Daniela was born in 1994, Mr. And Mrs. Puma set up a similar UTMA account for her, for the same reason as the gift to her siblings. At present, the balance is approximately $146,000.00. There have been no distributions from these accounts to date.
The court heard the parties over the course of five days, including final argument.
Pendente Lite Issues:
At the commencement of the case, the wife's attorney indicated to the court that his client had several outstanding pendente lite issues, including a motion for exclusive possession, post-trial, as well as a motion for contempt regarding discovery and the payment of unreimbursed medical bills. Following a colloquy with the court, counsel indicated that it would not pursue the discovery issue. Likewise, at the time of final argument, the plaintiff indicated that she would not pursue the issue of unreimbursed medical bills. The issue of exclusive possession post-trial was heard in a separate and distinct proceeding, wherein the court heard from both parties as well as argument from counsel. The court then issued its ruling from the bench as of record.
In addition, the husband filed in court at the time of trial, a Motion for Order Re: Custody and Visitation (Pendente Lite) dated September 14, 2007, stating that the Parenting Plan March 2, 2007 was not in the best interest of the minor children, and seeking a change in the visitation arrangement by agreement, and in the absence of which, leaving the parties to seek specific orders of visitation. The court indicated that it would consider the matter in the context of the testimony and evidence at trial under Stahl v. Bayliss, 98 Conn.App. 63, 69-70 (2006), cert. den., 280 Conn. 945 (2006), and then make a determination as to whether or not said Parenting Plan is in the best interest of the minor children.
FINDINGS
The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as, inter alia, the factors enumerated in General Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-81, 46b-82, 46b-84, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:
1. That it has jurisdiction.
2. That the allegations of the complaint are proven and true.
3. That the marriage of the parties has broken down irretrievably, and that ample evidence exists that both parties have contributed to said breakdown.
4. That during the marriage, neither party has received any aid or assistance from the State of Connecticut or any town or political subdivision thereof.
5. That the net income of the husband is $84,656.00 per annum ($1,628.00 per week); and that the alimony order of the court should be based thereon. Ludgin v. McGowen, 246 Conn. 413 (2001).
6. That, among other things, given the wife's age, education, and her previous work experience, it is equitable and appropriate to consider the earning capacity of the wife in making its orders regarding alimony, Hart v. Hart, 19 Conn.App. 91, 94-95 (1989), and to impute to her an earning capacity in an entry-level position, in the minimum amount of $15,912.00 per annum, based upon the State of Connecticut minimum wage of $7.65 per hour paid over a forty-hour work week, and a net income of $15,340.00 per annum.
7. That based upon the net income of the parties, the presumptive basic child support is $413.00 per week; and that the husband's share is $351.00 per week.
8. That based upon the statutory factors, including the age, health, education, employability, and the work experience of the wife, as well as the ages of the children, a time-limited award of alimony is appropriate. Ippolito v. Ippolito, 28 Conn.App. 745, cert. denied, 224 Conn. 905 (1992); Milbauer v. Milbauer, 54 Conn.App. 304, 312-15 (1999); General Statutes § 46b-81.
9. That, based upon the testimony of the parties as well as their proposed orders, and the fact that the oldest child, Alessandra, is already enrolled in college, it is more likely than not that the parents would have provided support to each of the children for higher education or private occupational school if the family were intact; that in their Proposed Orders, as on file with the court, each of the parties has proposed that they share a portion of such college expense; that the children have available to them substantial assets in the form of UTMA accounts established in New York State by their grandfather that, in the absence of a written agreement by and between the parties, the court is limited by statute in the extent to which it can enter a post-majority support order; and that based upon the relevant statutory factors, it is equitable and appropriate to enter an educational support order and to secure it with adequate funds so as to ensure full future compliance. General Statutes § 466-56c; Sander v. Sander, 96 Conn.App. 102 (2006).
10. That the fair market value of the real property at 25 Innis Lane, Old Greenwich, Connecticut, is $1,460,000.00.
11. That the parties have agreed to joint custody; and that joint custody is in the best interests of the minor children. General Statutes $46b-56a(b).
12. That the court has reviewed a certain written Stipulation Re: Custody and Parenting Schedule of the parties ("Parenting Plan") dated March 2, 2007 (#133.10); that in addition thereto, the court has considered the testimony of the parties at the time of trial; and that, under all the circumstances, there has been no substantial change in circumstances and said Parenting Plan is in the best interest of the minor children, and should be made a part of the court file and incorporated by reference herein. Stahl v. Bayliss, 98 Conn.App. 63, 69-70 (2006), cert. den., 280 Conn. 945 (2006).
13. That throughout the marriage, until their separation, both parties each made contributions to the acquisition, maintenance, and preservation of the family assets, including the real estate, however, the court finds that a significant factor in its decision, the fact that, by far, the vast majority of the family wealth came through the wife and/or her family. General Statutes § 46b-81.
14. That the parties executed a written Stipulation regarding the ownership of the Rocky Point Club dated November 15, 2007, as on file with the court, which the court finds to be fair and equitable, approves same, and orders that it become incorporated by reference in this decree.
15. That the parties executed a written Stipulation regarding the division of the personal property dated November 15, 2007, as on file with the court, which the court finds to be fair and equitable, approves same, and orders that it become incorporated by reference in this decree.
16. That no credible evidence was offered to the court regarding the annual premiums for health insurance to cover the minor children.
ORDER
IT IS HEREBY ORDERED THAT:
1. The marriage of the parties is hereby dissolved, and they are each hereby declared to be single and unmarried.
2. The parties shall have joint custody of the minor children, and parenting schedule shall be as set forth in the Stipulation Re: Custody and Parenting Schedule, dated March 2, 2007 (#133.10), as previously approved and ordered by the court.
3. Commencing December 1, 2007, and monthly thereafter, the husband shall pay to the wife the sum of $1,521.00 as and for child support, until such time as Michael shall reach the age of eighteen years or shall be otherwise emancipated, at which time child support for Daniela shall be adjusted in accordance with the then existing Child Support Guidelines or as a Court may otherwise direct. The foregoing notwithstanding, if any child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or their nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b).
4. Commencing December 1, 2007, and monthly thereafter, the husband shall pay to the wife the sum of $2,500.00 as and for periodic alimony, until the death of either party, the remarriage of the wife, or May 31, 2008. Thereafter, the husband shall pay to the wife the sum of $2,000.00 per month as and for periodic alimony, until the death of either party, the remarriage of the wife, or November 30, 2012, whichever shall sooner occur.
It is the intention of the court that the term of alimony is nonmodifiable by either party, and further, where the sole basis of a proposed modification by the husband of the amount of alimony is the wife's earnings from employment, that it shall not be grounds for modification of the amount of alimony unless said earnings exceed $25,000.00 per annum.
5. Commencing with the Spring Semester in 2008, the husband and wife shall each be liable for one-half of the educational expenses for each of the children's post-high school, to include room, board, tuition, fees, registration and application costs, in an amount not exceed the amount charged by The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except as may otherwise be agreed by the husband and wife. As to each child, said educational support obligation shall continue until the sooner of the following to occur: the child completes four full academic years of study, the child attains a bachelor's or other undergraduate decree, or other appropriate vocational instruction, or the child reaches the age of 23 years. Said obligation is further conditioned upon the child's compliance with the provisions of General Statutes § 46b-56c(e).
As and for security for the faithful performance of this obligation, the wife shall place the $150,000.00, as ordered from the sale of the family home in Paragraph 9 of this Order, in an interest-bearing account in her name and of her choosing, and from the date of said deposit, she shall make all further payments on behalf of both parties consistent with this educational support order and shall account to the husband annually thereafter as to the balance in said account and any expenditures therefrom. If there are any funds remaining after the support order has been fully satisfied, the parties shall divide same 25% to the husband and 75% to the wife. The wife shall be entitled to deduct from the account, any additional state and federal income taxes she has incurred resulting from the interest paid thereon.
6. The husband shall promptly notify his employer as to the change of marital status and shall cooperate with the wife in obtaining continuation health insurance coverage as provided by state and federal law. The wife shall be responsible for the payment of any premiums due for such coverage.
7. The husband shall maintain and pay for health insurance for each of the minor children so long as he shall be obligated to pay child support for that child, including support pursuant to an educational support order or other post-majority support order. Unreimbursed medical, dental, orthodontic, optical, pharmaceutical, psychiatric, and psychological expenses for the minor child, shall be divided by the parties, 42% by the husband and 58% by the wife. The provisions of General Statutes § 46b-84(e,) shall apply.
8. The husband shall maintain his existing life insurance (Assurant Health/Time Insurance Company, Policy #5892099) for the benefit of the children so long as he has an outstanding support obligation as to any or all of them, including an educational support order. The foregoing notwithstanding, the husband may reduce the insurance in force by one-third as each child reaches the age of twenty-three years or upon the termination of his support obligation, including an educational support order, for that child, whichever shall sooner occur.
9. The wife shall have exclusive possession of the real estate located at 25 Innis Lane, Old Greenwich, Connecticut, subject to any existing indebtedness, and she shall be responsible for the payment of all mortgages, liens, taxes, and insurance, and shall indemnify and hold the wife harmless from any further liability thereunder. The husband shall vacate said premises no later than January 13, 2008, or at such other time as the parties may agree. During any period of joint occupancy, the parties shall follow the previously agreed-upon schedule as ordered by the court following the hearing regarding exclusive possession pendente lite. As to said real estate, the parties shall list same for sale no later than May 1, 2008, with a mutually acceptable broker who is a member of the Multiple Listing Service or other similar organization, familiar with real estate values in the Greenwich area, at an agreed-upon asking price. If the parties are unable to agree upon a broker, each shall choose a broker who, in turn shall pick a third broker, and the listing price shall be the average of all three brokers. Unless the parties shall otherwise agree, they shall accept any bona fide offer without unusual conditions, which is within 5% of the listing price. Upon sale of the property, from the proceeds shall be paid the customary and ordinary costs associated with a sale of real estate, including broker and attorney fees, conveyance taxes, and any mortgages and liens, together with the sum of $150,000.00 to secure the educational support order as set forth elsewhere in this decree. After the payment and/or withdrawal of these sums, the net proceeds shall be divided 25% to the husband and 75% to the wife.
While she occupies same, the wife shall have the sole responsibility for the payment of the balance of the mortgage or home equity, if any, and the payment of insurance until transfer of title or sale. Real estate taxes shall be shared equally by the parties and paid when due. She shall have the sole responsibility for repairs costing $250 or less. Both parties shall share the cost of any maintenance, repairs, or replacements in excess of $250 in the same proportion as their share of the net proceeds. Either party may advance the full cost of the real estate taxes or repairs and an adjustment shall be made at time of sale or transfer. Neither party shall further encumber the property or draw on any home equity line without the agreement of the other. The Court shall retain jurisdiction with regard to any conflicts arising out of this issue.
10. Personal property shall be divided as follows:
A. The personal property and home furnishings are hereby awarded to the parties in accordance with their written Stipulation dated November 15, 2007, as on file with the court.
B. Each party shall be entitled to keep the automobile which they are currently driving subject to any liens, leases, or other encumbrances, free and clear of any claims by the other party, and each party shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register same. The wife is currently driving a 2006 Honda Pilot, and the husband is currently driving a 2000 GMC pickup truck.
C. Except as otherwise set forth herein, each party shall be entitled to keep their respective savings, checking, and money market accounts free and clear of any claims by the other.
D. The following property shall belong to the husband, free and clear of any claims by the wife:
1. 17' Boston Whaler; and
2. His tools.
E. The following property shall belong to the wife, free and clear of any claims by the husband:
1. Her interest in Epic Contracting Corporation;
2. Her wedding ring and miscellaneous jewelry; and
3. Her Morgan Stanley brokerage account.
11. Within thirty (30) days from the date of this order, the wife shall transfer to the husband, by way of a tax-free spousal transfer, cash and/or securities in the amount of $250,000.00 from the wife's Morgan Stanley Individual Retirement Account to such other retirement account or accounts as the husband may direct. The selection of particular securities or assets and/or cash to satisfy said transfer shall be at the sole discretion of the wife.
12. Except as otherwise set forth herein, the parties shall each be responsible for the debts as shown on their respective financial affidavits, and they shall indemnify and hold each other harmless from any further liability thereon. In particular, the husband shall be responsible for: a. Dell Computers, b. MBNA #5332, c. AT T #8534, d. Citi #9748, e. Wilton Bank loan, f. PMJ Capital, g. Sadik-Kabn, h. Chase Auto Finance, and i. TDEAB, Inc. In particular, the wife shall be responsible for: a. storage fees, b. Quest Diagnostic, c. Greenwich Hospital, d. Greenwich Radiological Group, e. Chase #5149, and e. MBNA #7752.
13. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
14. The wife shall be entitled to retain the membership in the Rocky Point Water Club in accordance with the written Stipulation of the parties dated November 15, 2007, as on file with the court.
15. The Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52-362(b) in order to secure the payment of the alimony order.
16. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h).