Opinion
TTDFA185009710S
12-19-2018
Kimberly L. Taylor v. Douglas O. Taylor
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Macierowski, Jennifer, J.
MEMORANDUM OF DECISION
Macierowski, J.
I
BACKGROUND
This marital dissolution action was commenced by the plaintiff, Kimberly Taylor, against the defendant, Douglas Taylor, by service of a writ of summons and complaint dated February 19, 2018. The present case was tried to the court on October 30, 2018. The court finds the following facts by a fair preponderance of the evidence presented at trial. The plaintiff and the defendant were married on December 8, 1996, in Marlborough. Both parties have resided continuously in the state of Connecticut for at least one year before the present action was filed. All statutory stays have expired, and the court has jurisdiction over the present case. The allegations of the complaint have proven to be true. There has been an irretrievable breakdown of the marriage, and there is no hope of reconciliation.
The plaintiff submitted a financial affidavit on July 9, 2018. The defendant, who was represented by counsel, submitted his financial affidavit and proposed orders on the day of trial. The self-represented plaintiff did not submit proposed orders on the day of trial; however, the court allowed her to submit them following the trial and afforded the defendant an opportunity to respond.
The parties were married for twenty-two years. They have one child, a daughter, who is currently eighteen years old and in her first year of college. The defendant is an employee of the town of Glastonbury (town). He had approximately eleven years of town service before the parties were married. He also is the co-owner of a home improvement business. His primary assets consist of his account with the town’s 457 savings plan and his town pension. According to his financial affidavit, his present net weekly income is $1,341.
The plaintiff lists her current net weekly income as $1,251.66. This includes a weekly death benefit from her mother of $480.15. Previously, the plaintiff worked for CIGNA with a yearly salary of approximately $78,000, not including possible bonuses. In 2013, she lost her job in a round of layoffs at CIGNA. During the period following her layoff, the parties agreed to cash out her 401(K) to cover family expenses. Thus, she currently has no retirement assets of her own.
The marital home is held in the plaintiff’s name only. This was done by agreement of the parties due to the defendant’s side business. There are two mortgages on the home, and it is currently in foreclosure. The plaintiff’s financial affidavit indicates the house has negative equity in an amount exceeding $75,000. The house is listed with a real estate agent. The defendant has been living in the home since the plaintiff moved out.
The parties jointly owe the Internal Revenue Service (IRS) approximately $12,000 for their 2013 and 2014 taxes. They also have joint credit card debt of approximately $8,000.
II
ISSUES
When the parties appeared before the court for trial, they were in agreement on many matters. Specifically, the parties agreed to an exchange of nominal alimony of $1 per year until all debts were resolved. They agreed to share the liabilities and costs of the marital home fifty-fifty. They also agreed to share their outstanding joint IRS and credit card debt fifty-fifty, with the plaintiff making the monthly payments to the creditors and the defendant paying his half to the plaintiff on a monthly basis.
The plaintiff did complain that the defendant was not maintaining the house properly and not allowing her access. She also testified that, after she moved out of the marital home, she made payments to the defendant to help cover expenses on the house and did not know it was in foreclosure until she saw a notice on the premises. Her posttrial proposed orders requested that net losses be divided twenty-five percent plaintiff and seventy-five percent defendant.
They agreed to ask the court to reserve jurisdiction over postmajority educational support for their daughter pursuant to General Statutes § 46b-56c and stipulate that, had their family remained intact, it is more likely than not that they would have provided support to their daughter for higher education.
There were areas of disagreement. The plaintiff asked the court to order the defendant to maintain health insurance for their daughter as long as it is available to him and to contribute towards her auto insurance, clothing and extracurricular expenses. The defendant argued that, absent an agreement of the parties, the court has no authority to order support of any kind for a child over the age of majority. As a general proposition, the court agrees with the defendant. See McKeon v. Lennon, 147 Conn.App. 366, 377, 83 A.3d 639 (2013) (requirement that parent pay for child’s auto insurance terminated when child reached age of majority, absent clear agreement of the parties to extend obligation beyond such age); Lowe v. Lowe, 47 Conn.App. 354, 357-58, 704 A.2d 236 (1997) (court has no jurisdiction to order child support past the age of majority, absent agreement of the parties).
However, when entering an educational support order pursuant to § 46b-56c, a court may include a requirement that a parent provide medical insurance for the child. See General Statutes § 46b-56c(f). Thus, should the parties be unable to agree, they may return to court to seek an educational support order, which could include a directive regarding the provision of medical insurance.
The primary area of disagreement was the plaintiff’s request that the defendant elect survivor benefits for her under his town pension plan and that he name her as an irrevocable beneficiary under the life insurance policy he has through the town as well. The defendant argued that, while the plaintiff is entitled to half of the marital portion of his 457 account and town pension, to require him to give her survivor benefits would disproportionately decrease his benefits and overcompensate the plaintiff. He had eleven years of service prior to the marriage and, being in his early fifties, could work another ten years or more before retiring. Giving the plaintiff survivor benefits would also tie his hands, should he remarry and wish to elect survivor benefits for his new spouse.
In fact, some town plans do not allow survivor benefits to be assigned to a former spouse.
With regard to the life insurance policy, the defendant argued that naming a spouse as a beneficiary in a divorce proceeding is generally done to secure child support and/or alimony payments, which are not at issue here. He should not be prohibited from naming a beneficiary of his choosing, including their daughter. The court agrees with the defendant that, under the circumstances of this case, and considering the statutory criteria relevant to a property division, including but not limited to, the length of the marriage and the parties’ age, health, occupation, earning capacity, employability and liabilities, requiring the defendant to elect survivor benefits for the plaintiff under his town pension and name her an irrevocable beneficiary under his life insurance would be inappropriate. See General Statutes § 46b-81.
Although the plaintiff at trial agreed to nominal alimony, her posttrial proposed orders sought an award of periodic alimony in the amount of $150 a week for nine years. The defendant objected, arguing that such an award would be inappropriate and the plaintiff essentially waived any right to claim alimony at trial.
The defendant also argued that the plaintiff should be barred from claiming alimony because her complaint did not seek alimony. An amended complaint, however, filed May 11, 2018, did claim alimony.
"There is no absolute right to alimony." Weinstein v. Weinstein, 18 Conn.App. 622, 637, 561 A.2d 443 (1989). "[A] trial court may exercise broad discretion in awarding alimony as long as it considers all of the statutory criteria enumerated in General Statutes § 46b-82 ..." O’Neill v. O’Neill, 13 Conn.App. 300, 312, 536 A.2d 978 (1988). Pursuant to that statute, when considering an award of alimony, the court must consider "the evidence presented by each party and ... the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties ..." General Statutes § 46b-82(a).
In the present case, although the plaintiff arguably waived her claim to periodic alimony when she stated at trial "[f]or alimony, I am requesting $1 per year until all joint debt is resolved," the court will nevertheless consider her claim, but decline to award periodic alimony based on the facts of the present case and the statutory criteria delineated in § 46b-82. The court finds neither party to be more at fault than the other for the breakdown of the marriage. Both parties are employed with incomes that are not substantially different. Except for her period of unemployment after being laid off from CIGNA, the plaintiff has a history of gainful employment. Applying the statutory criteria to both parties, the court finds them to be relatively equal such that an award of periodic alimony would be inappropriate.
The plaintiff did question the defendant about the income he receives from his home improvement business and stated that she believes he underreports such income.
III
ORDERS
Upon careful consideration of the evidence presented, the parties’ arguments and proposed orders, the relevant statutes and case law, and having observed the demeanor and assessed the credibility of the parties, the court finds the following to be fair and equitable under the circumstances and makes the following orders.
1. Separate Ways
The parties may and shall at all times hereafter continue to live separate and apart for the rest of their natural lives. Each shall be free from interference, authority, and control, direct or indirect, by the other, as fully as if he or she were single and unmarried. Each may reside in such place as he or she may select. The parties shall not molest each other or compel or endeavor to compel the other to cohabit or dwell with him or her, by any legal or other proceedings for the restitution of conjugal rights or otherwise.
2. Health Insurance
The parties shall each be solely responsible for obtaining and maintaining their own health and/or dental insurance coverage and unreimbursed costs.
3. Post-secondary Education Support
The court finds that, as a matter of fact, it is more likely than not that the parties would have provided support to their child for higher education if the family were intact. Pursuant to § 46b-56c, the court will retain jurisdiction over educational support for the benefit of the eligible child. The parties shall cooperate with each other in providing information on scholarships, grants and other forms of student aid and shall cooperate with each other while filing the required documentation, including all forms necessary to the completion of the Free Application for Federal Student Aid.
4. Alimony
The plaintiff shall pay to the defendant the sum of $1 per year in alimony until the defendant no longer has any liability for debts incurred and for which he may be responsible and yet she takes responsibility through the divorce. Said alimony shall cease when the parties no longer have any liability in regards to said debts. In the event that the plaintiff fails to properly pay all sums and debts due and the defendant incurs any costs, fees or expenses, including attorney fees, as a result of the plaintiff’s failure to pay, then alimony shall immediately be increased to a sum equal to that of any cost, fee or expense incurred by the defendant and shall be paid forthwith. Likewise, the defendant shall pay to the plaintiff the sum of $1 per year in alimony until the plaintiff no longer has any liability for debts under the same provisions as previously outlined in this section. Said alimony shall cease when the parties no longer have any liability as regards to such debts. In the event that the defendant fails to properly pay all sums and debts due and the plaintiff incurs any costs, fees or expenses, including attorney fees, as a result of the defendant’s failure to pay, then alimony shall immediately be increased to a sum equal to that of any cost, fee or expense incurred by the plaintiff and shall be paid forthwith. Except as referenced above, and as set forth in § 11(2)(b) of these orders, neither party shall pay alimony to the other. The court shall retain jurisdiction over the provisions of this section.
5. Personal Property
The parties have divided their personal property to their mutual satisfaction, except that the defendant shall allow the plaintiff to return to the marital home at least one time before it is sold to retrieve any remaining personal items.
6. Automobiles
The parties shall each retain title to their own motor vehicles. The plaintiff shall assume, pay, hold harmless and indemnify the defendant with respect to her motor vehicle and the defendant shall assume, pay, hold harmless and indemnify the plaintiff with respect to his motor vehicles. Each shall assume responsibility for all loan, insurance, tax and registration costs related to the vehicle they retain as of this decision. They shall indemnify and hold harmless the other thereon. Title(s) shall be transferred to the other party to effectuate this provision, if necessary.
7. Tax Liabilities
(1) Currently, there exists a joint 2013 and 2014 IRS tax due of approximately $12,000. The plaintiff shall be responsible for making timely monthly payments of $370 until said debt is paid off. She shall make payments such that no penalty is assessed for untimely payments, and she shall indemnify and hold harmless the defendant regarding said penalty, if any. Notwithstanding the above, the defendant shall make timely monthly payments to the plaintiff to be paid on or before the tenth day of each calendar month in an amount equal to one-half of the said monthly payment or $185. If he fails to pay said $185 payment timely and that is ascertained as the reason why a penalty is assessed, then he shall be responsible for the penalty, if any, and indemnify and hold the plaintiff harmless thereon.
(2) If a deficiency assessment is made in connection with any of the prior year returns, each party shall notify the other at once, in writing, and they shall equally pay fifty-fifty the amount finally ascertained to be due, with any interest and penalties, any expenses occasioned by the deficiency, including reasonable attorneys fees necessarily incurred in connection therewith, except that the defendant shall be solely responsible for any deficiency, including any interest, penalties or other costs, associated with Bucks Corner Home Improvement and shall indemnify and hold the plaintiff harmless from same.
8. Tax Benefits
The parties shall file separate federal and state 2018 tax returns. The plaintiff shall claim any tax-related benefits concerning their daughter and the marital home for 2018. The parties shall thereafter alternate claiming any available tax benefits concerning their daughter, with the defendant claiming such benefits in odd numbered years, and the plaintiff claiming such benefits in even numbered years. The defendant may claim any tax benefits concerning the marital home for the 2019 tax year and thereafter as applicable and until the house is sold, so long as he is paying all recurring costs and expenses for said home in compliance with § 10(1) of these orders.
9. Debts
(1) Currently, debts exist regarding Chase and Bank of America credit cards. The defendant shall pay to the plaintiff $500 per month for eight months due on or before the tenth day of the month for a total of $4,000 regarding his obligation thereon. The plaintiff shall be responsible for paying the credit card debts, and if the defendant makes said timely payments, the plaintiff shall indemnify and hold the defendant harmless thereon.
(2) If there exists any compromise of debt or other financial benefit concerning these debts, the plaintiff shall immediately notify the defendant, and the defendant shall share equally in said benefit, reducing his aforementioned obligation proportionately. Any tax liability resulting from a compromise of debt shall also be shared equally.
(3) Except as referenced above, each party shall be responsible for his or her, as the case may be, own debts as listed on their respective financial affidavits and hold the other harmless thereto. Any debts not disclosed shall be the sole responsibility of the party who incurred the debt and is grounds to reopen the judgment in this matter.
(4) All joint credit cards and accounts shall be canceled forthwith or have the other party’s name removed within thirty days from the date of judgment. Any benefits attached to the credit card, i.e. air miles, gifts, cash bonuses, etc., shall remain with the person retaining the credit card.
10. Marital Home
(1) The marital home located at 87 Chestnut Hill Road in Hebron is currently on the market for sale and in foreclosure. The defendant shall have exclusive possession and use of the home until sold. From the date of these orders, the defendant shall be solely responsible for, and shall indemnify and hold the plaintiff harmless from any and all regularly recurring costs and expenses associated with the marital home, including, but not limited to, mortgage payments (i.e., principal and interest) on all mortgages secured by the property, real estate taxes, homeowner’s insurance, utilities and regular home maintenance.
(2) The parties shall cooperate in the sale of the home and shall not refuse any reasonable offer to purchase the home as recommended by the listing agent. The parties shall equally share in any net sale proceeds or losses, except that the plaintiff shall not be responsible for amounts paid or owed by the defendant pursuant to § 10(1) of these orders for any regularly recurring costs and expenses incurred after the date of these orders. Any such costs shall be the sole debt and responsibility of the defendant. Ordinary closing costs, such as conveyance taxes, real estate commissions, and attorneys fees, shall be shared equally. The court shall retain jurisdiction over the sale of the marital home and the provisions of this section.
11. Retirement Accounts
(1) The Defendant’s 457 Savings Plan
The plaintiff is assigned 50 percent of the defendant’s account with the town’s 457 savings plan, valued at the time of divorce, along with investment gains and losses thereon. The plaintiff’s share shall be based on the gross account balance. If there are loans outstanding, the gross account balance for determining the plaintiff’s share shall be calculated as if no loans were outstanding. If the defendant is not fully vested, the plaintiff’s share shall be based on the total (vested and unvested) balance. The transfer shall be made by a qualified domestic relations order (QDRO).
The court finds that an equal division of the total gross balance of the defendant’s 457 savings plan account is fair and equitable under the facts and circumstances of the present case. In this regard, the parties used all of the plaintiff’s 401(K) during the marriage to support the family after the plaintiff was laid off. Thus, 100 percent of the plaintiff’s 401(K), not just the marital portion thereof, was used to support the family during the marriage. The defendant’s 457 savings plan account has a value of $93,740, according to his financial affidavit. There was no testimony as to when the account was opened. The parties were married for twenty-two years. Under the facts and circumstances of the present case, the court finds that, even if the account predates the marriage, an equal division is appropriate.
(2) The Defendant’s Pension
(a) Separate Interest Assignment-The plaintiff is assigned, by means of a QDRO, as a separate interest payable over her lifetime, 50 percent of the marital portion of the husband’s town pension earned as of the date of divorce. The plaintiff shall be entitled to cost of living adjustments and early retirement subsidies, if any, attributable to her share. The marital portion shall be determined by multiplying the benefits earned as of the date of divorce by a fraction, the numerator of which is the months and years of service credited to the defendant during the marriage, and the denominator of which is the total months and years of service credited to the defendant as of the date of divorce. Such assigned benefit shall be payable to the plaintiff commencing on either (1) the defendant’s normal retirement date, (2) the defendant’s actual retirement date, if he retires early, or (3) any date chosen by the plaintiff that is allowed by the plan administrator. The plaintiff shall be treated as a surviving spouse only for the purpose of, and to the extent necessary to, ensure that she receives her assigned benefit in the event husband predeceases her prior to the date she commences receiving her benefit payments; or
(b) Alternate Shared Interest Assignment-If a separate interest assignment pursuant § 11(2)(a) of these orders is not possible, the plaintiff is assigned, by means of a QDRO, as a shared interest payment to her as an alternate payee, 50 percent of the marital portion of the defendant’s pension earned as of the date of divorce. The plaintiff shall be entitled to cost of living adjustments and early retirement subsidies, if any, attributable to her share. The marital portion shall be determined by multiplying the benefits earned as of the date of divorce by a fraction, the numerator of which is the months and years of service credited to the defendant during the marriage and the denominator of which is the total months and years of service credited to the defendant as of the date of divorce. Under the shared payment approach, the plaintiff’s payments will be made simultaneously with payments to the defendant, and will terminate on the first death of either party. If the plaintiff dies before the defendant, future monthly benefits will revert to the defendant. If the defendant dies prior to retiring, and a lump sum death benefit is payable, the plaintiff shall be assigned 33 percent of the contributory portion as of the date of divorce, with any interest that has accrued since that date. If the defendant does not retire on or before his sixty-fifth birthday, he shall pay the plaintiff, on a monthly basis as alimony until she begins receiving her assigned shared interest payment, an amount equal to the amount she would receive as a shared interest payment pursuant to this subsection if he retired on said date.
Benefit plans that are qualified under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., allow separate interest QDROs, which effectively give the nonparticipant spouse a separate lifetime pension that pays benefits over his or her lifetime, regardless of when the participant spouse dies. The court finds this arrangement to be preferable, fair, and equitable to both parties. It puts the parties on equal footing by giving the plaintiff a lifetime benefit, based on her marital portion of the pension, just as the defendant will receive a lifetime benefit. It also addresses the survivorship concern of the plaintiff, without substantially diminishing the defendant’s benefits or tying his hands in the future regarding the ability to elect survivor benefits. However, some non-ERISA plans, such as municipal plans, have only implemented shared payment arrangements whereby the nonparticipant spouse collects benefits only if, when, and so long as the participant spouse is collecting. The intent of this order is to require that the plaintiff receive a separate interest benefit so that she may receive benefits over the course of her lifetime. However, if such an arrangement is not possible because the plan administrator will not approve it, then the plaintiff shall receive a shared interest benefit.
(3) QDRO
The parties shall share equally the costs of preparing the QDRO(s), including any administrative fees from the plan administrator and/or institution. The parties shall employ Attorney Elizabeth McMahon, of 206 Meadow Street, Branford, Connecticut 06405, to effectuate such transfers. If no QDRO is necessary, the parties shall secure transfer in as expedient way as practicable. The court shall retain jurisdiction over the provisions of this section.
12. Intent
Notwithstanding the labels of any particular section, subsection, and paragraph hereof, all of the obligations are in the nature of support and, therefore, shall not be dischargeable by either party in the event of a bankruptcy filing. The payment(s) and obligation(s) referenced are intended to be family support/separate maintenance payments within the meaning of §§ 523(a)(5) and 523(a)(15) of the United States Bankruptcy Code. Each party will be responsible for the payment of any and all debts hereafter incurred by him or her, as the case may be, and each will hold the other free, harmless and indemnified of and from responsibility for any and all such debts.
SO ORDERED.