Opinion
TTDFA165006885S
11-14-2017
Kelly Timm v. Jeffrey Timm
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PENDENTE LITE MOTION FOR CONTEMPT AND DISSOLUTION
Sheila M. Prats, J.
This dissolution of marriage action was commenced by the plaintiff wife, Kelly Timm, against the defendant husband, Jeffrey Timm, by summons and complaint dated August 12, 2016, and made returnable to this court on August 30, 2016. Automatic orders were served on 8/12/16. The case was tried before the court on July 13, 2017 and July 14, 2017. Both parties were represented by competent counsel. The court heard testimony from each party and from Steven Pedneault, a forensic accountant. The parties submitted financial affidavits dated July 13th, 2017 and April 10th, 2017. Each party introduced a number of exhibits.
At trial, the parties disagreed about the division of certain assets. The principal issues this court must decide concern the distribution of the marital home, the distribution of the defendant's pensions from CVS and other deferred compensations plans including a 401k and IRA, CHET accounts and the award of alimony, child support, insurance and the distribution of some personal property. Finally, there is an unresolved pendente lite motion for contempt, filed by the plaintiff. The plaintiff is also seeking an award of attorneys fees as well as an expert witness's fee. The plaintiff is seeking restoration of her maiden name Ford.
Upon careful consideration of the evidence presented, the parties' briefs, the pertinent statutory law, in particular C.G.S. § 46b-62 (attorney fees), C.G.S. § 46b-81 (assignment of the marital estate), C.G.S. § 46b-82 (the award of alimony), C.G.S. § 46b-84, 46b-56 (child support and child custody) and the relevant case law, and having observed the demeanor and assessed the credibility of the parties and the other witness at trial, the court finds and orders as follows.
FINDINGS OF FACT
The plaintiff and the defendant were married in Westfield, Massachusetts on June 14, 1992. Both parties have resided continuously in the State of Connecticut for at least one year before this action was filed. All statutory stays have expired and the court has jurisdiction over this matter. The allegations in the complaint have been proven and true. The court finds that the marriage has broken down irretrievably, with no hope of reconciliation. In addition, the court finds the following by a fair preponderance of the evidence.
The plaintiff and defendant have been married for twenty-five years and raised two daughters, Dakota age 17 and Cheyenne age 16, who are both minors. The plaintiff filed for a divorce on August 11th of 2016. The plaintiff is 49 years of age; the defendant is 53 years of age. The plaintiff has a tenth grade education. During the course of the marriage, the parties agreed that the plaintiff would stay at home with the children, caring for them and meeting all of their needs. She worked part-time in the school cafeteria when the children were younger. She presently works as a home health aide for 10 hours per week and earns $11.00 per hour. For the most part, the plaintiff was not included in family financial decisions and consequently was unfamiliar with most of the household expenses, except for snow plowing.
The defendant is a pharmacist, currently employed at CVS. Historically, he worked third shift and had significant overtime, up to as much as 65 hours per week. As evidenced from their 3 prior tax returns, he did very well financially. In 2014 the tax return indicates a gross income of $172,449.00, $172,888.00 in 2015 and $242,145.00 in 2016, almost all of which came from the defendant's income. According to the parties' financial affidavits, the plaintiff represents that she earns $70 per week and receives $118 per food stamps. The defendant represented on his first financial affidavit dated 8/29/16, that he earned $2,118 per week net income but on a subsequent affidavit dated 7/13/17 he reported that he earns $1,552 as net income. At the trial, the defendant testified that CVS has reduced his hours and in addition, he is now suffering from health issues that have resulted in him not being able to work additional overtime. He testified that he is on pain medication, and that he now suffers from varicose veins and anxiety, coupled with chronic depression. As a result, the defendant claims that between the filing of his first and second financial affidavits, his work hours have decreased substantially to 30-35 hours per week and his income has reduced substantially. Even giving the defendant the benefit of the doubt that he does suffer from some physical and mental health issues, this court understands the reduction in the defendant's work schedule but also finds that there is no reason why the defendant is not able to work the standard 40 hours per week.
The plaintiff attributes the breakdown of the marriage to years of dealing with the defendant's anger issues, which she described were exhibited as mood swings, temper tantrums, yelling and screaming obscenities at her and the children. The court notes that the defendant was arrested on two occasions, and he ultimately pled to Threatening and a Violation of Conditions of Release. The total effective sentence was two years suspended and three years of probation. The conditions of his probation include, but are not limited to, no contact with the children, except as ordered by the family court. A standing criminal protective order was issued at his sentencing, including, but not limited to, a residential stay-away and no contact with the plaintiff. The parties agreed that the plaintiff should be awarded sole custody of the minor children. The defendant is requesting visitation with the children and proposes having a third-party facilitator. The plaintiff testified that the children do not want contact with the defendant at present time. The plaintiff testified that both children have been subjected to the defendant's anger, his yelling and calling them names and his swearing obscenities at them. Further, the children witnessed domestic violence in the incident of July 9th, 2016 that resulted in the defendant's first arrest. Consequently, the plaintiff and her children have not had any contact with the defendant in a significant period of time. The defendant conceded that his behavior did contribute to the final breakdown of the parties' marriage.
Realty
The marital home was purchased in 2011. At the time of trial, the house had been placed on the market for sale. The sale price was reduced in early 2017 to $375,000.00 and at the time of trial there was a sale pending. This court has no sworn testimony as to whether the house was eventually sold. Even though the defendant was paying $1,200.00 in child support and alimony, the plaintiff did not maintain the payments on the mortgage on a timely basis. As a consequence, the mortgage was in arrears by $8,000.00 dollars. Testimony established that the defendant paid at least two mortgage payments in 2016. The parties did not submit any testimony or a home appraisal, nor did they stipulate as to the value of the marital home. The only evidence of value entered without objection for this court's consideration was Exhibit FF. This exhibit is a report dated June 19, 2017, by Thomas Clark, a mortgage broker, who conducted a physical inspection of the property at 73 Suncrest Drive Ext. in Somers CT. He opined that the house should sell somewhere in the $310,000.00-$320,000.00 range. The parties, in their financial affidavits, listed the outstanding mortgage as between $234,000.00-$240,000.00. Based upon this limited information of value, this court finds that the equity in the marital home is between $76,000.00 and $86,000.00.
The defendant purchased a home in 2016 in East Longmeadow, Massachusetts. He used $32,000.00 from the marital assets to purchase his home. He values that property at $126,000.00.
Other Assets
The parties own two automobiles. The Dodge Nitro is operated by the plaintiff. The Hummer H3 is operated by the defendant. The defendant is requesting that certain property be returned to him. The property is listed in Defendant's Exhibit GG. The plaintiff testified that the piano was gifted by her mother-in-law to the children. The defendant testified that the children don't know how to play piano and that the piano was never gifted to them. The piano clearly has sentimental value to the defendant and should be owned by the defendant. The plaintiff did testify that some of the items were already returned to the defendant by way of his brother. The parties have assets in banks and retirement accounts last valued in May 2017. Plaintiff's Exhibit #1:
Bank of America Checking #2698--$1,587.86
Bank of America Savings #6422--$20,057.09
Bank of America Checking #7322--$0.00
Investment-Acorn Securities, LLC #7916--$2,010.88
CVS Stock Purchase Plan--$15,854.59
CVS 401K--$294,440.71
E-Trade #9407--$2,386.07
Wells Fargo #5119-Ohio An.--$44,199.24
Wells Fargo #5305--$169.20 (July 31, 2016--$22,174.06)
TD Ameritrade #0035--$18,206.34 (July 31, 2016--$87,858.05)
TD Ameritrade #6240--$114,678.90
Chet-TD Ameritrade #68-01 Dakota--$0.00 (July 31, 2016--$34,091.28)
Chet-TD Ameritrade #68-02 Cheyenne--$0.00 (July 31, --$33,872.26)
The parties had a total of $636,925.00 in assets comprised of a combination of different checking, savings, educational and retirement's accounts, in addition to cashing out the children's CHET accounts, the defendant also engaged in other transactions that resulted in a decrease in those assets down to $531,590.88 or a difference of $105,334.12. The defendant did give to the plaintiff $15,000.00 from the sale of some stock from their mutual funds to in 2016 as part of an agreement dated 8/29/16.
Contempt
The plaintiff filed a pendente lite motion for contempt that was unresolved and argued as part of the trial. See, plaintiff's motion number 124. The applicant must prove to the court by " clear and convincing evidence, " Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015). The plaintiff alleges in her motion that the defendant prepared Joint Tax returns without her authorization and consent, and that the defendant plans to pay for the tax bill with marital assets without her consent and authorization and/or court approval. The second ground for the motion for contempt alleges that the defendant withdrew approximately $60,000.00 from the children's CHET accounts in violation of the automatic orders which will result in penalties in taxes that the plaintiff should not bear.
The evidence at trial was clear that the defendant paid the bills and managed the family's finances throughout the course of the marriage. The defendant admitted that he prepared the 2016 tax return as he normally did without asking the plaintiff for her authorization. The court finds that this does not necessarily rise to the level of contemptuous behavior, but the court does find that the tax penalties are the direct result of the defendant's actions. The forensic accountant, Mr. Pedneault, testified that the parties in their 2014 and 2015 tax returns had received refunds from both the federal and the state government. In 2016, however, there was a federal tax liability of $8,772.00 and a state liability of $2,006.00. The plaintiff satisfied her burden of proving that the expert witness was ordered as a result of the defendant's own actions in cashing out funds from the marital estate without prior agreement or court approval.
This court does find that the defendant failed to comply with the automatic orders, when he cashed out the CHET accounts and when he sold stocks and deposited said money from the sale into his own personal Bank of America account. The court finds the noncompliance was willful.
APPLICABLE LEGAL STANDARDS
Alimony and Property Distribution
At the time a court enters a judgment of dissolution, it " may assign to either spouse all or part of the estate of the other spouse." C.G.S. § 46b-81. " The purpose of a property division pursuant to a dissolution proceeding is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution." Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023 (1999). " In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." C.G.S. § 46b-81(c). Provided the court considers all relevant statutory criteria, it may exercise broad discretion in dividing property. Coleman v. Coleman, 151 Conn.App. 613, 617, 95 A.3d 569 (2014). The court may place varying degrees of importance on each criteria according to the factual circumstances of each case. Keller v. Keller, 167 Conn.App. 138, 155, 142 A.3d 1197 (2016).
The allocation of liabilities and debts is a part of the court's broad authority in the assignment of property in marital dissolution proceedings. McKenna v. Delente, 123 Conn.App. 146, 2 A.3d 38 (2010). Requiring one party to assume the joint liabilities of the parties is authorized by Section 46b-81. Costa v. Costa, 57 Conn.App. 165, 752 A.2d 1106 (2000). The fact that a party does not currently have the financial ability to pay a debt is not determinative. Russo v. Russo, 1 Conn.App. 604, 608, 474 A.2d 473 (1984).
There is no absolute right to alimony. C.G.S. § 46b-82 provides that the court " may" award alimony and the decision whether to do so rests within the discretion of the court. Weinstein v. Weinstein, 18 Conn.App. 622, 637, 561 A.2d 443 (1989). The purpose of alimony is to fulfill a continuing duty to support, which arises out of the obligation the spouses assume toward each other as a result of the marriage. Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023 (1999). When considering an award of alimony, the court must consider " the evidence presented by each party and shall consider 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 and the award, if any, which the court may make pursuant to section 46b-81" concerning property distribution. Provided that the court considers all statutory criteria, it has wide discretion in awarding alimony. Costa v. Costa, 57 Conn.App. 165, 174, 752 A.2d 1106 (2000). The court may place varying degrees of importance on each statutory criterion according to the factual circumstances of the case. Cimino v. Cimino, 155 Conn.App. 298, 304, 109 A.3d 546 (2015).
In reaching its conclusions concerning an appropriate distribution of marital property and in determining whether to award alimony in this case, the court has considered all of the factors set forth in C.G.S. § 46b-81(c) and C.G.S. § 46b-82. " [T]he specified criteria are not exhaustive, and the court properly may consider other equitable factors when crafting its property distribution and alimony orders." Keller v. Keller, 167 Conn.App. 138, 155, 142 A.3d 1197 (2016), quoting Loughlin v. Loughlin, 93 Conn.App. 618, 625, 889 A.2d 902, aff'd, 280 Conn. 632, 910 A.2d 963 (2006).
Child Custody and Visitation
The court's authority to enter orders concerning child custody and visitation is governed by C.G.S. § 46b-56. Section 46b-56(c) requires that, in making such orders, " the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests." The statute identifies sixteen factors the court may consider, without limitation, in determining the best interests of the child.
Child Support
Every parent has an independent legal obligation to provide for the support of their children. Burke v. Burke, 137 Conn. 74, 80-81, 75 A.2d 42 (1950); C.G.S. § 46b-37. That obligation creates in the child a corresponding right to receive such support. Burke, supra, 80-81. The entry of a divorce decree does not affect the parental obligation of support.
C.G.S. § 46b-56 authorizes the court to make orders of custody and support. The factors the court must consider are: " the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child." C.G.S. § 46b-84(d). When making child support determinations the court is required to consider the guidelines adopted and periodically updated by the Commission for Child Support Guidelines established pursuant to C.G.S. § 46b-215a. The guidelines are considered in addition to, not in lieu of, the factors set forth in C.G.S. § 46b-84(d). Ferraro v. Ferraro, 45 Conn.App. 230, 234-35, 695 A.2d 23 (1997). Nevertheless, " [i]n all such determinations, there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount to be ordered." C.G.S. § 46b-215b(a). To overcome that presumption, the court must make a specific finding that " application of the guidelines would be inequitable or inappropriate . .., as determined under the deviation criteria established by the Commission . . ." C.G.S. § 46b-215b(a). Under the Income Shares Model adopted by the Commission, the intent is to ensure that the child " receive the same proportion of parental income as he or she would have received if the parents lived together." Child Support and Arrearage Guidelines (2015), preamble, § (d), p. v. (Basic Principles).
Pursuant to C.G.S. § 46b-84(d), the court is authorized to consider earning capacity, not just actual income, when making child support determinations. Basing a child support order on earning capacity rather than actual income, however, is a deviation from the guidelines. Fox v. Fox, 152 Conn.App. 611, 633, 99 A.2d 1206 (2014). C.G.S. § 46b-215a-5c of the Regulations of Connecticut State Agencies sets forth the deviation criteria courts may rely upon to depart from the presumptive child support award calculated under the guidelines. C.G.S. § 46b-215a-5c(b)(1) permits a deviation based on " other financial resources available to a parent, " including earning capacity. " In some cases, a parent may have financial resources that are not included in the definition of net income, but could be used by such parent for the benefit of the child or for meeting the needs of the parent. The resources that may justify a deviation from presumptive support amounts under this subdivision are limited to the following: . . . (B) The parent's earning capacity . . ." C.G.S. § 46b-215a-5c(b)(1)(B). Reliance upon the deviation criteria must be supported by factual findings. C.G.S. § 46b-215a-5c(a).
Earning capacity, for purposes of making child support awards, is " not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health." Fox, supra, 152 Conn.App. 634 (quoting Tanzman v. Meurer, 309 Conn. 105, 113-14, 70 A.3d 13 (2013)). The court must determine a specific dollar amount of earning capacity and may base that determination upon evidence of a party's prior earnings. Id. (citing Boyne v. Boyne, 112 Conn.App. 279, 283, 962 A.2d 818 (2009). The circumstances surrounding a party's failure or inability to achieve their earning capacity are relevant, but there is no requirement that they include bad faith or a willful failure to earn in order for a court to base its award on earning capacity as opposed to actual income. Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007). If the court finds that it would be inequitable or inappropriate to apply actual income rather than earning capacity, under the particular circumstances of the case, the court may base its child support award upon party's earning capacity. Id. (citing Unkelbach v. McNary, 244 Conn. 350, 371, 710 A.2d 717 (1998)).
Attorneys Fees and Expert's Fees
The award of attorneys fees pursuant to C.G.S. 46b-87 is punitive rather than compensatory. The court may consider the party's behavior as an additional factor both to the necessity of awarding attorneys fees and the proper amount of any award. Esposito v. Esposito, 71 Conn.App. 744, 750, 804 A.2d 846 (2002).
ORDERS
After careful consideration, this court dissolves the marriage of the parties and declares each party to be single and unmarried. A decree of dissolution may enter and the following orders are incorporated into its judgment.
1. Custody and Visitation
The court has considered the best interest factors as set forth in C.G.S. § 46b-56c, this court finds that it would not be in the children's best interests to have contact with the defendant. The conditions of the defendant's probation will terminate three years from May 31, 2017. At that time, both children will have attained majority and will be able to make their own decisions regarding contact with the defendant. Given that there is a no contact provision regarding the plaintiff and a no visitation order, this court finds that the plaintiff is in the best position to meet the children's needs and make decisions for them unilaterally. Sole custody is awarded to the plaintiff with no visitation rights to the defendant.
2. Child Support
In this case, this court has attributed a minimum wage earning capacity to the plaintiff. The defendant represents that he is presently earning $2,130.00 gross per week or net $1,398.00 based on approximately 30-35 hours per week. This is a significant decrease from the income he represented in August 2016 of $3,240.00 gross per week or net of $2,074.00, based on up to 65 hours of work per week. If the court holds the defendant to a 40-hour work week, his earning capacity is approximately $2,600.00 gross per week or net $1,592.00.
After considering and applying all of the statutory criteria pursuant to C.G.S. § 46b-84, the child support guidelines, as well as the testimony of the parties, this court concludes that the defendant has a child support obligation of $380.00 per week. The defendant's percentage for unreimbursed medical and dental expenses is 62%. The defendant shall provide medical and dental insurance coverage for the minor children as is available to the defendant through employment at a reasonable cost not to exceed 7.5% of his net income.
3. Post-Secondary Educational Support
The court finds that had the parties remained an intact family, they would have financially supported their children in their post-secondary educational efforts and that the children are likely to pursue post-secondary educational experiences. The court shall retain jurisdiction over the post-secondary education expenses for the minor children pursuant to C.G.S. § 46b-56c.
4. Alimony
This court has considered all of the factors enumerated in C.G.S. § 46b-83(a), including but not limited to, earning capacity of the parties, parties' ages, their ability to acquire future assets and their health. Assuming that the defendant shall retire at the regular social security retirement age, the defendant shall pay alimony to the plaintiff in the amount of $600.00 per week, to be secured by immediate income withholding. Alimony is deductible by the defendant and taxable to the plaintiff. Alimony shall terminate upon earlier of, the death of either party, the remarriage of the plaintiff or 14 years from the date of judgment. It is modifiable as to amount based upon a substantial change of circumstances, including but not limited to cohabitation as defined by statute. It is non modifiable as to term.
5. The Marital Home
The marital home is awarded to the plaintiff who shall receive 100% of the remaining equity after all expenses from the sale have been deducted. The court shall retain jurisdiction.
6. Automobiles
The parties shall retain their respective motor vehicles. They will be responsible for all cost associated with the ownership and operation of said vehicle including the property taxes and shall indemnify and hold each other harmless from any liability therefrom. The defendant shall execute and deliver at no cost to the plaintiff any and all documents or forms necessary to effectuate the terms of this provision.
7. Personal Property
The plaintiff shall make a good faith effort to return the property to the defendant identified in Defendant's Exhibit GG. As part of this order the plaintiff shall also return to the defendant any lawn mowers and snow blowers and or tools that are still in the garage. Any items not agreed upon shall be the subject of binding arbitration. All costs of said arbitration shall be shared equally by the parties.
8. Bank accounts and Retirement Funds
The defendant shall transfer to the plaintiff 100% of the monies in the Bank of America Savings account ending in #6422.
The defendant shall transfer to the plaintiff 100% in the TD Ameritrade account ending in #0035.
The defendant shall transfer 60% of the TD Ameritrade account ending in #6240.
The defendant shall transfer to the plaintiff 60% of his CVS 401k valued as of date of this judgment. Any cost associated with said transfer including the preparation of the QDRO shall be paid by the defendant. The court shall retain jurisdiction over this transfer until the transfer is completed.
9. Tax Exemptions
The plaintiff shall claim the older child, as a dependent for all income tax purposes and the defendant shall claim the younger child as a dependent for all income tax purposes until the child is no longer eligible, provided the father is current on all child support obligations as of December 31st.
10. Attorney Fees
This court reviewed Plaintiff's exhibit #14. The court finds the fees to be reasonable and orders the defendant to pay $10,000 towards the plaintiff's attorneys fees.
11. Expert Fees
The plaintiff's request for an award of expert witness fees is granted. The court having considered the parties' respective financial abilities and the criteria set forth in C.G.S. § 46b-82 awards the plaintiff the expert witness fee in the amount of 3, 392.50 to be paid by the defendant.
12. Life Insurance
The defendant shall maintain life insurance sufficient to cover his alimony and child support obligations.
13. Debts and Hold Harmless Provisions
Each party shall be solely responsible for the debts and liabilities as set on their own respective financial affidavits filed with the court. They shall hold harmless and indemnify the other from liability therefrom.
15. Former Name
Pursuant to C.G.S. § 46b-63, the plaintiff's maiden name of Ford is hereby restored.
SO ORDERED.