Opinion
No. FA-06-4005795
March 3, 2008
MEMORANDUM OF DECISION
The plaintiff who is a resident of Columbia, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on October 3, 2006. At the time, the defendant also was a resident of Columbia, Connecticut.
The court finds that it has jurisdiction and that all statutory stays have expired.
A limited contested trial was held before the undersigned on November 7 and 8, 2007 and January 29, 2008. Both parties were represented by counsel, and counsel filed briefs in support of their respective positions following trial. Both parties appeared and testified at trial. The court also heard testimony from the following witnesses: Brendan Begley, CPA; Tessa Lamirande, School Therapist; Lisa Jones; Cynthia Nemeth, Real Estate Appraiser; Tiffany VanDyke; Barbara Dyke; and Charles Coyne, Business Appraiser.
The court has fully considered the criteria of General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.
FACTUAL FINDINGS
The court finds that the following facts were proven by a preponderance of the evidence:
1. The plaintiff, whose maiden name was Heather L. Bosworth, and the defendant were married on October 14, 1994, in Norwich, Connecticut.
2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.
3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.
4. There are three children born to the plaintiff since the date of the marriage, namely, Ashley R. VanDyke, born May 10, 1997; Katelyn S. VanDyke, born November 25, 1998, and Megan E. VanDyke, born March 1, 2002. No other children have been born to the plaintiff since the date of the marriage.
5. Neither party has received assistance from any state or local agency.
6. The parties agree to joint custody of the minor children with primary residence with the mother, reasonable visitation with the father, and agree to resolve disagreements and changes with a family therapist. The court finds the proposal to be in the children's best interest and will incorporate the proposal into the judgment.
7. At the time of the marriage, the defendant owned a house in Andover, CT, and the family lived in it for about five years. The house was sold in 1999, and the family lived with the defendant's parents for a time while their new home in Columbia was being constructed. Defendant used $19,000 in equity to help buy the new home.
8. The plaintiff has a bachelor's degree in family studies from the University of Connecticut. Earlier in the marriage, she worked full-time in her field earning at a rate of up to $27,000 per year in 1997. As their children were born, she stayed home to take care of them, and started an in-home day care business in 2000 to help earn money as finances were tight. She stopped working in 2005 as the business was not making a profit, and it interfered with her children's needs. She is now back in school, earning a master's degree in her field. Her grandfather and parents are paying the tuition. She expects to graduate in May 2008, and hopes to work in a school system earning $25 to $35 per hour, but not more than $30,000 per year in the beginning. In December 2007, she started working part-time where she has an internship, earning about $182 per week, gross ($168 per week, net).
9. The defendant has a high school diploma, and works at DYKO Industries, Inc., his family's steel fabrication business in South Windsor, CT. He has worked there since graduating from high school. The business has less than 30 employees, including his mother, father, two sisters and an uncle. He works as the foreman of the shop and has the title of Vice President/Production Manager. He is paid hourly at $31.50 per hour, plus overtime and bonuses. He works about 40 to 60 hours per week, depending on the workload and the economy. His hours and rate of pay are set by his father, the founder and head of the company.
10. Major personal property assets of the plaintiff include her diamond ring, an unfinished aluminum boat with motor, and half interests in a 1999 Dodge Caravan and 2004 Chevrolet Express, plus a savings and checking account, all totaling about $11,525.
11. Major personal property assets of the defendant include a 401k plan worth $100, 407 accumulated during the marriage, a diamond ring, a Rolex watch, an aluminum engine, shares in 229 South Satellite Road, LLC, plus half interest in the vehicles, totaling about $184,582.
12. The jointly owned home is valued at about $350,000 with a mortgage with a balance of about $127,000, yielding an equity of about $223,000. 13. 229 South Satellite Road, LLC, is a small closely held business that owns the land and a building at that address in South Windsor. It rents the property, without a written lease, to DYCO Industries. Defendant's mother is the controlling manager of that company. Since 2000, she has been slowly gifting shares in the company to the defendant and his siblings for estate planning purposes. The defendant now owns a 15 percent interest in that business. A real estate appraiser who testified at trial found the fair market value of the building and land to be about $1 million. It currently distributes to the defendant about $7,000 per year in passive earnings. Defendant does not receive the money, but he is obligated to pay tax on the reported distribution. A business appraiser at trial employed an adjusted net asset value approach to valuing the business and estimated that the defendant's share in the company has a fair market value of about $75,000. 14. One of the children has been diagnosed with a disability and attends the Learning Clinic in Brooklyn, CT, at the expense of the Columbia School District. Another child received special education services in-district, also at the expense of the Columbia School District.
15. Defendant's business is currently in a temporary period of economic slowdown, but that is expected to change soon. Considering his earning and work history, he has an earning capacity of $100,000 per year, gross. His net pay at that rate is approximately $1,294 per week.
16. The court accepts the plaintiff's Child Support Guideline numbers. Based on the Guideline, the presumptive support amount owed by the defendant is $362 per week before deviation.
17. During the course of the marriage, the couple suffered under stress from financial pressures and personality conflicts. The plaintiff unnecessarily spent money on pets, ignored practical ways to cut household expenses, and failed to stay within a budget, spending not on luxuries, but spending whatever she thought was necessary regardless of ability to pay for it. The defendant failed to share financial information, failed to control his temper, and was impatient in matters of housekeeping and parenting. The couple went to therapy, and the defendant still does attend, but the plaintiff stopped going. Both parties equally caused the dissolution of the marriage.
18. The marital home expenses include $477 weekly expense for the mortgage, taxes and insurance. The utilities bills run between $161 and $350 per week. During the separation, the plaintiff incurred a credit card debt of $45,000, which was consolidated and refinanced in 2007, costing about $46 per week. Since then, the plaintiff has incurred another $15,000 in credit card debt. The plaintiff estimates her total weekly expenses and debt payment at about $1,639 per week. The defendant is living with his sister in a condominium owned by their father. He contributes $80 per week for his use of the condominium. He has credit card debts of about $41,198. His total weekly liabilities, including pendente lite obligations is running about $1,384 per week. This includes a credit card debt with a balance of about $2,383 owed to Bank of America for debts incurred during the marriage.
19. The plaintiff drives the Chevrolet and the defendant drives the Dodge. There is an auto loan on the Chevrolet, on a Chase Bank credit card, with a balance of about $11,000. The defendant is paying off that loan. The defendant also has personal use of a company truck, but it is large and not appropriate for regular passenger use.
20. Plaintiff contends that the defendant's salary has been artificially reduced, or that he gets paid "under the table" to avoid family support obligations. Those claims were not proven. Defendant contends that he did not list his interest in the LLC in his financial affidavit at first because he did not understand its significance. His testimony was not credible on this point.
21. The parties' expenses are running at about $2,567 per week. The defendant's gross income capacity is only $1,923 per week and the plaintiff currently earns $182 per week gross. The plaintiff intends to save money by refinancing the home at a lower rate with her parents as co-signors, and she expects to obtain full-time employment in a school system after graduating in May 2008 to permit her to earn a full-time salary of up to $30,000 per year and be on the same schedule as the children. The defendant intends to resume working more overtime when the workload and economy permit.
22. On September 6, 2007, the court entered certain pendente lite orders requiring the defendant to pay, inter alia, a portion of the work-related day care expenses. The defendant argues that this does not include day care expenses related to plaintiff's school or internship schedule and he has not contributed to the payment of those bills, currently running about $305 per week. Plaintiff asks the court to require defendant to pay his share of the past day care expenses related to plaintiff's school and internship.
23. The real estate appraisal method of valuating the LLC is not a reliable method for valuing defendant's share of the business. The real estate appraisal valued the land and building, but defendant does not own the land or building. Rather, those assets are owned by the LLC. Also, the real estate appraisal does not take into account debts or income of the LLC; it does not take into account the defendant's lack of control over the LLC as a non-manager and minority shareholder, and it ignores the limited marketability of his shares in the LLC. The adjusted net asset value model is more reliable because it does take those things into account. Based on an adjusted net asset value model, which the court finds to be the most reliable valuation method for this case, the defendant's interest in the LLC has a fair market value of $75,000.
24. The parties agree that the court may retain continuing jurisdiction regarding the post-majority educational support pursuant to General Statutes § 46(b)-56.
25. The parties have been separated since October 2006, when the husband vacated the marital premises on the recommendation of the local police, who were called to the home one night due to an argument. 26. The defendant is 38 years old and in good health. The plaintiff is 35 years old and in good health.
27. The plaintiff does not request restoration of her former name.
LEGAL DISCUSSION
"The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." Gervais v. Gervais, 91 Conn.App. 840, 841, 882 A.2d 731 cert. denied 276 Conn. 919, 883 A.2d 88 (2005).
Alimony CT Page 3254
The purpose of alimony is to provide continuing support. Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023 (1999). "There is no absolute right to alimony . . . awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court." (Citations omitted.) Weinstein v. Weinstein, 18 Conn.App. 622, 631, 561 A.2d 443 (1989). "In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall . . . consider the length of the marriage, the age, health, station, occupation, amount and source of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make [concerning property division], and, in the case of a parent to whom the custody of the minor children has been awarded, the desirability of such parents securing employment." General Statutes § 46b-82. The court must base its alimony order on the parties' net income. Ludgin v. McGowan, 64 Conn.App. 355, 780 A.2d 198 (2001).Child Support
The child support and arrearage guidelines are considered in all determinations of child support amounts and payments on arrearages and past due support within the state. General Statutes § 46b-215b. The child support guidelines are considered in addition to and not in lieu of the criteria established in General Statutes §§ 46b-84 and 46b-86. There is a rebuttable presumption that the child support amount resulting from the guidelines is the child support amount to be ordered. Castro v. Castro, 31 Conn.App. 761, 766, 627 A.2d 452 (1993). Any deviation from the guidelines must be pursuant to one or more specific deviation criteria. Baker v. Baker, 47 Conn.App. 672, 677, 707 A.2d 300 (1998). The court must make a specific finding on the record that the application of the guidelines would be inequitable or inappropriate according to the guideline's deviation criteria. Mullin v. Mullin, 28 Conn.App. 632, 612 A.2d 796 (1992). Expenses for special needs are grounds for deviation from the presumptive support amounts. Guidelines, Sec. 46b-215a-3(b)(2)(C).
Custody
Custody was not in dispute in this case.
Property Division
The purpose of property division is to equitably distribute the marital property to each spouse. Smith v. Smith, supra, 249 Conn. 275. "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 . . . the age, health, status, occupation, amount and sources of income, vocational skills, 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." General Statutes § 46b-81.
"In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation." (Citations omitted.) Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983). A closely held corporate stock cannot be valued reasonably by the application of any inflexible formula. Id.
The court in Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (1995) held that the purpose of § 46b-81 was "to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute-directly and indirectly, financially and nonfinancially-the fruits of which are distributable at divorce." Id., 797-98; Ranfone v. Ranfone, 103 Conn.App. 243, 250-51, 928 A.2d 375 (2007).
"[Conn. Gen. Stat.] § 46b-81 [assignment of property and transfer of title] applies only to presently existing property interests, not "mere expectancies." Bartlett v. Bartlett, 220 Conn. 372, 380-81, 599 A.2d 14 (1991). An expectancy is only "the bare hope of succession to the property of another — such as may be entertained by an heir apparent." Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). "The term expectancy describes the interest of a person who merely foresees that he might receive a future beneficence . . . [T]he defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence." (Citations omitted; internal quotation marks omitted; emphasis in original.) Krafick v. Krafick, 234 Conn. 783, 797, 663 A.2d 365 (1995).
"A court may accept or reject such evaluations in whole or in part and ascribe its own valuations to real estate . . . The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder." (Citations omitted.) Martin v. Martin, 90 Conn.App. 145, 150 n. 4, 913 A.2d 451 (2007).
"Trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings . . . The trial court is granted the authority, pursuant to section 46b-81, to order the sale of the marital home without any act by either the husband or the wife, when in the judgment of the court is the proper mode to carry the decree into a fact." (Citations omitted.) Martin v. Martin, supra, 99 Conn.App. 154.
"It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income . . . Earning capacity, in this context, 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." (Citations omitted.) Elia v. Elia, 99 Conn.App. 829, 833, 916 A.2d 845 (2007). "It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations . . ." (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007). Moreover, "lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate." (Citations omitted; internal quotation marks omitted.) Milazzo-Panico v. Panico, 103 Conn.App. 464, 468, 929 A.2d 351 (2007).
Attorneys Fees
General Statutes § 46b-62 provides, "In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse . . . to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82."
"[A] court should have the discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct . . ." Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007).
ORDERS
The court orders the following:
1. The marriage is dissolved effective on the filing of this decision.
2. Alimony. The defendant shall pay periodic alimony to the plaintiff in the amount of $300 per week which alimony shall terminate on the plaintiff's death, remarriage or on October 1, 2018, whichever occurs first, and shall be subject to modification, alteration, suspension or termination as to the amount only pursuant to General Statutes § 46b-86.
3. Custody. In accordance with the parties' parenting plan, which the court adopts, the parties shall have joint custody of the minor children, primary residence with the plaintiff, with reasonable visitations with the defendant including, but not limited to, every other weekend. The parties shall continue working with the family therapist. Dr. Joseph Horton, and shall consult with the therapist regarding access issues and changes to the existing parenting plan. Nothing in this order shall prevent the parties from consulting with other therapists or health care professionals.
4. Child support. The defendant shall pay to the plaintiff as child support the sum of $450 per week, which amount deviates from the Child Support Guidelines amount of $362 due to the extraordinary expenses incurred by the plaintiff in connection with the special needs of two of the children. Said child support is based on the defendant's earning capacity of $100,000 and shall terminate for each child when said child reaches age eighteen; provided, however, that if any child reaches age eighteen and is a full-time student in high school, child support for said child shall continue for that child until that child reaches age nineteen, whichever occurs first. Furthermore, the court shall reserve the right to determine, at the appropriate time, whether a support order pursuant to General Statutes § 46b-84(c), regarding the continuation of child support until a child's twenty-first birthday in the case of mental or physical disability, shall apply. All support orders shall be subject to a contingent wage withholding order. Additionally, the parties shall divide any qualified child care expenses pursuant to the formula set forth in the child support guidelines, including any daycare expenses required to allow plaintiff to complete her present Master's Degree program, internships or work. Due to the specificity in the pendente lite order of September 6, 2007, the defendant is not required to pay his share of the school or internship-related daycare expenses that plaintiff claims is in arrearage. The court shall retain jurisdiction over this case for purposes of entertaining an order regarding payment of higher education expenses for the children pursuant to the provisions of General Statutes § 46b-56c.
5. Medical. The defendant shall maintain the children on his present medical insurance policy, or the equivalent, as provided by his employer. The parties shall each be responsible for all unreimbursed medical, dental, psychological, psychiatric and orthodontia expenses incurred on behalf of the minor children according to the guidelines. The provisions of General Statutes § 46b-84(e) shall apply. The defendant shall make available to the plaintiff COBRA benefits, but plaintiff shall be responsible for paying for it if she utilizes those benefits.
6. Attorneys Fees. The defendant shall contribute to the plaintiff's attorneys fees in the amount of $5,000.00 within ninety (90) days of judgment.
7. Property. The defendant shall immediately quit claim to the plaintiff all of his right, title and interest in the family home located at 27 Dilaj Drive, Columbia, CT. The plaintiff shall immediately refinance said property, removing defendant's name from the mortgage, and hold the defendant harmless on all expenses in connection with said real estate, including but not limited to the mortgage and taxes thereon and costs of refinancing. The defendant shall retain his interest in 229 South Satellite Road, LLC free and clear of any claim from the plaintiff. Considering the mortgage and other debt liabilities of the parties, the financial imbalance between the parties, and the award of the LLC to the defendant, the court will not require the plaintiff to pay any part of the equity in the home to the defendant. The parties shall divide equally all of the liquid post-marital assets shown on their financial affidavits, including and especially bank accounts. The parties shall divide equally the deferred compensation account (401k). The defendant shall be responsible for the expense of preparing any Qualified Domestic Relations Order. Each party shall retain the automobile currently in his/her possession, free and clear of any claim from the other and save and hold the other harmless therefrom and be responsible for all costs of same. Plaintiff shall be responsible for the balance of the loan to Chase Bank in the approximate amount of $11,000, which was used to purchase her vehicle. The parties shall file a joint tax return for 2006, if they have not already done so, and divide any refund equally. The parties shall divide all of the household furnishing and personalty by agreement. In the event they are unable to agree, they shall submit to binding arbitration by FRO. Each party shall provide the other with a complete list of all other financial obligations incurred since the filing of the complaint, including all credit card debts, and each shall pay and hold the other harmless from his/her own debts, except that the defendant shall be responsible for the balance of the credit card debt to the Bank of America incurred jointly during the marriage. All existing joint credit cards shall be destroyed.
8. Life Insurance. For so long as the defendant has a child support obligation, the defendant shall maintain a policy of term life insurance in the total amount of $250,000 for the benefit of his minor children with the plaintiff as trustee, provided such insurance is available and reasonably affordable.
9. Tax Exemptions. The defendant shall be entitled to claim the minor children as exemptions on his state and federal income tax returns provided he is current on all child support and alimony obligations as of December 31 of the year in which said exemptions are claimed until such time as the plaintiff's earned income exceeds $20,000.00 annually, at which time the parties shall alternate claiming two/one child annually; when only two children may be claimed, each party shall take one child; and when only one child may be claimed, the parties shall alternate claiming the deduction annually. The parties shall exchange tax returns no later than April 15 of each year.
10. The clerk shall prepare the judgment file. All counsel shall sign the judgment file.
11. Dissolution shall enter.