Opinion
LLIFA156012300S
09-26-2016
M. Beth Vernali v. Joseph Vernali
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
HON. John D. Moore, J.
I
INTRODUCTION
Trial in this dissolution action took place on June 28 and July 6, 2016. Both parties appeared and were represented by counsel.
II
DISCUSSION
This is a contested divorce, but the issues involved are largely financial. The plaintiff and the defendant were married on August 9, 1997, in Lakeville, Connecticut. Two children were born as issue of this marriage, Andrew, on April 9, 2002 and Abigail, on June 19, 2004. The plaintiff is not expecting a child. The plaintiff resided in Connecticut for more than one year before she filed this action. All statutory stays have expired. The court has both personal and subject matter jurisdiction in this case. Neither party is receiving or has received aid or assistance from the State of Connecticut or from a city or town in Connecticut. The parties agree and the court concludes that the marriage has broken down irretrievably with no hope of reconciliation.
The plaintiff's complaint seeks a dissolution of the marriage, joint legal custody of the minor children, physical custody of the minor children, an equitable distribution of the real and personal assets of the marriage, and other equitable relief. The defendant filed a cross complaint seeking a dissolution of the marriage, a fair division of the real and personal property and debts of the marriage, alimony, joint legal custody of the minor children and a parenting responsibility plan to include both decision-making and a schedule of physical care for the minor children.
There is a great deal of overlap in the parties' proposed orders. The parties have each asked the court to award the following elements of relief: (1) joint legal custody, with the plaintiff being the primary residential and custodial parent, (2) visitation for the defendant with the minor daughter at her discretion, (3) allowing the plaintiff to retain the social security disability benefit payment awarded to each child ($503/month for each child for a total of $1,006) as a result of the defendant's social security disability in place of an award of child support from the defendant, (4) periodic alimony to the defendant from the plaintiff, (5) the retention by each party of her and his respective retirement plans, (6) an equal division of the parties' NFP Investment Plan, (7) the listing of the marital home for sale at a mutually agreeable price, with net proceeds to be divided equally between the parties at the time of sale, (8) allowing the defendant to continue to live at the marital home until sale, (9) the retention of jurisdiction by the court over the sale of the marital home, (10) a stipulation that the parties would have provided higher education support to the minor children had the parties remained married, (11) an agreement that the minor children's CHET accounts be accessed before either party is obliged to make payments toward an education support order, as well as the retention of jurisdiction by the court over such an order, (12) each party maintaining a life insurance policy on his and her life in the amount of at least $500,000, with a stated portion of benefits to be paid into a trust to be established for the two minor children, the trustees of which would be the maternal aunt and the paternal uncle of the children, (13) the maintenance of health insurance by the plaintiff on behalf of the children as available to her through her employment at a reasonable cost, (14) a mutual and fair division of the parties' personal property, with recourse to an attorney referee in the event of a dispute, (15) the retention of the parties' respective cars by each party, (16) responsibility of each party's liability by each party with mutual indemnification therefore running in favor of the other party, and (17) an order granting the plaintiff the right to claim both minor children as tax exemptions.
The parties disagree as to amount and term of the proposed alimony payments.
The plaintiff's life insurance policy would also secure her alimony obligation to the defendant.
The parties' disagreements are, therefore, few in number. The plaintiff requests that the defendant's parenting time with their minor daughter be supervised, although she did not make the same request as to their minor son. Additionally, the plaintiff proposes more specific details as to the drop off of the minor son. The defendant seeks " reasonable, liberal and flexible visitation with" the minor son. The plaintiff proposes an alimony award of $1,250 per month, $288 per week for a period of ten years, while the defendant requests an alimony award of $2,500 per month, or $576.92 a week. The plaintiff asks that alimony be non-modifiable as to term and amount, ending only upon the death of either party or the defendant's remarriage, and becoming modifiable upon the defendant's cohabitation according to Connecticut statute. The plaintiff would like the defendant to be responsible for all regular expenses of the marital home while he resides there, but would agree to share equally in repairs in excess of $1,000. The plaintiff also requests a provision preventing the defendant from committing waste at the property. The defendant agrees to pay for mortgage and utilities at the marital home, but asks the parties to divide equally taxes and insurance, as well as all repairs, regardless of cost.
General Statutes § 46b-81 governs the trial court pertaining to issues arising from the transfer of marital property and provides in relevant part: " At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either spouse all or any part of the estate of the other spouse. The court may pass title to real property to either party . . . when in the judgment of the court it is the proper mode to carry the decree into effect . . . In fixing the nature and value of the property, if any, to be assigned, the court, after considering all of the evidence presented by each party, 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." The court has broad discretion, pursuant to § 46b-81, to assign the property and liabilities of the parties. Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).
The court is not required to afford the same weight to each factor. Calo-Turner v. Turner, 83 Conn.App. 53, 62, 847 A.2d 1085 (2004). Nor must the court make express findings as to each factor. Caffe v. Caffe, 240 Conn. 79, 82, 689 A.2d 468 (1997). It is sufficient that the court's factual findings indicate that the above factors were considered and that the evidence supports the equity of the division. See, e.g., Casey v. Casey, 82 Conn.App. 378, 384, 844 A.2d 250 (2004) (inequitable division of property not supported by factual findings); Greco v. Greco, 70 Conn.App. 735, 740, 799 A.2d 331 (2002) (within court's discretion to award plaintiff sixty-seven percent of assets after finding defendant's infidelity was cause of breakdown of marriage, a factor court required to consider pursuant to § 46b-81).
" A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties' assets. Casey v. Casey, [ supra, 82 Conn.App. 386-87]; Werblood v. Birnbach, 41 Conn.App. 728, 735-36, 678 A.2d 1 (1996). '[B]ecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.' Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993). Furthermore, 'the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property. Schmidt v. Schmidt, [ supra, 180 Conn. 191].' Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004)." McKenna v. Delente, 123 Conn.App. 146, 162, 2 A.3d 38 (2010) (as part of dissolution judgment, court ordered defendant to repay loans and promissory notes she executed in favor of plaintiff during their marriage), abrogated in part on other grounds by Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011).
A different statute, General Statutes § 46b-82, governs alimony awards in dissolution actions and provides, in relevant part: " (a) At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81 . . . In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and shall consider the length of the marriage, the 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 . . ."
An award of alimony has a different purpose than an award of property. The purpose of alimony is to provide continuing support, whereas the purpose of a property division is to equitably distribute the marital property to each spouse. 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, 637, 561 A.2d 443 (1989). " The court is to consider [all the statutory] factors in making an award of alimony, but it need not give each factor equal weight." (Internal quotation marks omitted.) Costa v. Costa, 57 Conn.App. 165, 174, 752 A.2d 1106 (2000).
The court, however, is not limited to the statutory factors. See, Sands v. Sands, 188 Conn. 98, 105-06, 448 A.2d 822 (1982) (state's interest in support payments), cert. denied, 459 U.S. 1148, 103 S.Ct. 792, 74 L.Ed.2d 997 (1983); Robinson v. Robinson, 187 Conn. 70, 71, 444 A.2d 234 (1980) (egregious conduct). The court must base its alimony order on the parties' net income. Cleary v. Cleary, 103 Conn.App. 798, 801-04, 930 A.2d 811 (2007); Ludgin v. McGowan, 64 Conn.App. 355, 358, 780 A.2d 198 (2001). The alimony order may provide for increases based on future additional income. Guarascio v. Guarascio, 105 Conn.App. 418, 421-25, 937 A.2d 1267 (2008).
Statutory and other factors courts may consider are:
length of the marriage; Loughlin v. Loughlin, 280 Conn. 632, 644-46, 910 A.2d 963 (2006) (prior marriage and period of cohabitation not to be included); cause of the breakdown; age of parties; Simmons v. Simmons, 244 Conn. 158, 180, 708 A.2d 949 (1998) (disparity in ages); health of parties; Tevolini v. Tevolini, 66 Conn.App. 16, 24, 783 A.2d 1157 (2001) (if party alleges health reasons for alimony, other party has right to refute claim, but physical examination can only be ordered for good cause); see also, Lucas v. Lucas, 88 Conn.App. 246, 250, 869 A.2d 239 (2005) (" finding by the Social Security Administration that the defendant is disabled for purposes of social security disability benefits does not preempt a court from making its own independent determination concerning the defendant's ability to work"); station in life; occupation; amount and sources of income; this can be either actual earned income amount or a court determination of a party's earning capacity; vocational skills; education; employability; estate and needs of parties, Zahringer v. Zahringer, 69 Conn.App. 251, 260-61, 793 A.2d 1214 (2002) (payor's income had greatly increased), rev'd on other grounds, 262 Conn. 360, 815 A.2d 75 (2003), overruled in part by Dan v. Dan, 315 Conn. 1, 14 n.11, 105 A.3d 118 (2014) (" [t]o the extent that Zahringer suggests that the supported spouse was entitled to share in any improvements in the supporting spouse's standard of living after the divorce, it is hereby overruled" [emphasis added]); see also Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 133, 869 A.2d 164 (2005) (lottery winnings voluntarily shared prior to dissolution raised standard of living for both parties); Panganiban v. Panganiban, 54 Conn.App. 634, 637, 642-43, 736 A.2d 190 (defendant's lottery winnings substantially increased ability to pay, regardless of plaintiff's previous standard of living), cert. denied, 251 Conn. 920, 742 A.2d 359 (1999); division of property; custody arrangements, and the desirability of the custodial parent's securing employment.
" As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony." Roach v. Roach, 20 Conn.App. 500, 505, 568 A.2d 1037 (1990). The court, however, does not " have to make express findings as to the applicability of each criteria . . . [but] may place varying degrees of importance on each criterion according to the factual circumstances of each case." Ippolito v. Ippolito, 28 Conn.App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992). The discretion that the court may employ applies both to the amount and duration of alimony.
The court may limit the duration of an alimony award for several reasons. One of these is to provide alimony for rehabilitative purposes. " [R]ehabilitative alimony . . . is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency." Bornemann v. Bornemann, 245 Conn. 508, 539, 752 A.2d 978 (1998); Mongillo v. Mongillo, 69 Conn.App. 472, 478, 794 A.2d 1054, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002). Although " time limited alimony awards are usually rehabilitative in purpose, there may be other valid reasons for awarding such alimony." Roach v. Roach, supra, 20 Conn.App. 506. " Another reason [for time limited alimony] is to provide support for a spouse until some future event occurs that renders such support less necessary or unnecessary." (Internal quotation marks omitted.) Clark v. Clark, 66 Conn.App. 657, 668, 785 A.2d 1162, cert. denied, 259 Conn. 901, 789 A.2d 990 (2001). Another reason for awarding alimony limited by time is to encourage the recipient to become self-sufficient. " Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency." (Internal quotation marks omitted.) Roach v. Roach, supra, 20 Conn.App. 506.
" Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court's award." Mathis v. Mathis, 30 Conn.App. 292, 294, 620 A.2d 174 (1993); see also Ippolito v. Ippolito, supra, 28 Conn.App. 753 (vacating financial order granting time limited alimony vacated because " unable to discern from . . . review of the record why the award of periodic alimony was limited to ten years").
The Supreme Court has held that when a financial support order made pursuant to either General Statutes § 46b-82 or § 46b-86 is based on a party's earning capacity, the court must specify on the record the dollar amount that the court has determined as the earning capacity. Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013). " [T]he trial court should attempt to provide as precise an estimate as possible based on the evidence presented by the parties." Id., 120 n.8. " Earning capacity . . . 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 vocation skills, employability, age and health." (Internal quotation marks omitted.) Id., 114.
III
FINDINGS OF FACT
The court finds the following relevant facts.
The parties' relationship was often fractious and troubled. Even before they were married, the parties attended couples' counseling. During their marriage, they participated in marriage counseling. For quite some time now, the parties seem to have had very different interests in their sexual relationship. One major reason for the relationship and marital problems was that the defendant was often emotionally dependent upon the plaintiff. Additionally, the defendant admitted that he suffered from a litany of personality disorders during the marriage, as set forth in his testimony concerning Exhibits 5A and 5B. The court finds that the manifestation of these disorders during the marriage damaged the parties' relationship. For these reasons, the court finds that the defendant's behavior was largely the cause of the break-up of the marriage.
The plaintiff is a nurse practitioner with a master's degree in nursing. The plaintiff entered the marriage with a bachelor's degree in nursing, and earned her master's degree during the marriage by using joint funds. The nursing master's degree allows the plaintiff to command a higher salary in her field.
The plaintiff is presently employed as the Director of Health Services at the Salisbury School, a private school. Her base pay at Salisbury is $92,000 per year. For her base pay, the plaintiff is expected to be available 40 hours a week. The plaintiff also serves as a dorm supervisor, a position which requires work above and beyond the 40-hour week. For this additional work, the plaintiff receives room and board, in the form of a full 3-bedroom apartment with a functioning kitchen, with utilities except for television and internet paid for, and, during the school year, up to three meals a day. The plaintiff testified that she and her children sometimes opt to skip the school dinner. The fact that the plaintiff receives board from the Salisbury School during the school year accounts for the relatively modest estimate of grocery expenses per week.
While the plaintiff additionally worked part-time until earlier this year at the Indian Mountain School and the Hotchkiss School, the Salisbury School informed the plaintiff that it no longer wanted her to perform such part-time work. Salisbury School also pays the plaintiff $150 twice a year to proofread essays. Further, the plaintiff has the opportunity, during the summer, to work at specialty camps operating at the Salisbury School. During this last year, for example, the plaintiff worked at a rowing camp at the school, for which she received $100 a day for each day she was requested to work.
The plaintiff's gross weekly income, not including any additional compensation for proofreading or for camp-related work, and based solely on her $92,000 base pay, is $1,769. The plaintiff's mandatory weekly deductions, as reflected in section I(2) of her most recent financial affidavit, are $690, yielding a net income after subtraction of such mandatory deductions of $1,079. The court, having reviewed the other expenses listed on the plaintiff's affidavit, finds that she has additional non-discretionary expenses, excluding expenses specifically earmarked for the children, in the amount of $641 per week. The court, therefore, finds that the plaintiff's surplus income, using solely her base pay, and not her very minor proofreading compensation and any possible summer earnings, and excluding expenses specifically allocated to the children, amounts to approximately $438 weekly.
The plaintiff's employer contributes $2,000 annually above and beyond her $92,000 salary toward her health care savings account.
The defendant argued that the court should consider, as a portion of the plaintiff's assets, the proceeds from two trusts, one established by each of her two parents, for which the plaintiff is a contingent beneficiary. The court is not persuaded. The evidence established that the plaintiff's father's trust poured over into the mother's trust at his death, and that the plaintiff's mother has sole discretion to use some or all of the proceeds or to terminate the surviving trust at any point during her lifetime. Therefore, consideration of the proceeds of this trust would be speculative.
The plaintiff owes the Internal Revenue Service $4,900 and has yet to enter into a payment plan with the IRS to pay off this debt.
The defendant has a 12th grade education. The defendant worked for many years as a fabricator and installer of sheet metal for HVAC and plumbing and heating applications. The defendant was diagnosed with Parkinson's disease in 2004. Between 2004 and 2009, after the diagnosis, but before the disease took a stronger hold of the defendant, he earned between $50,584 and $55,890 annually from his sheet metal employer. In the time since the diagnosis, however, the plaintiff lost the ability to fully control his hands and his balance. He experienced difficulty in working on ladders. He experienced rigidity and dystonia in, among other places, his right, dominant hand. The defendant describes his hands as being stiff and slower. The defendant cannot drive a car every day. The defendant's mental state has been negatively impacted by the disease, and he is often depressed. The defendant's employer attempted to accommodate him by shifting him to estimating and office work, but the difficulty in working with his hands and in driving caused him to leave this employment in early 2014.
Because of the effects of Parkinson's disease, the defendant, with the assistance of the plaintiff, applied for social security disability in February 2014. The defendant ultimately received such benefits. Since November 2014, the defendant has received a gross amount of $2,014 per month for social security benefits, from which $20.40 is deducted. The defendant's net weekly income, taking into account the federal tax deduction, is $418.
All expenses related to the marital home, including mortgage, property tax, oil, electricity, improvements, telephone, cellphone, television and internet currently total $412 per week. The defendant testified that he will rent a two-bedroom after selling the marital home and that such an apartment in this area would cost between $277 and $346 per week. The court finds that his rental expense, after the sale of the marital home, will be $300 per week.
Post-divorce, the defendant will have to pay for his own medical insurance. Taking into account payments for Medicare and for necessary supplemental coverage, the court finds that the defendant's weekly expenses for such charges will approximate $110 per week.
Having reviewed the defendant's claimed additional non-discretionary expenses, the court finds them to total $262 per week.
Prior to selling the marital home, therefore, the defendant will have non-discretionary monthly expenses of $784 per week. After selling the marital home, the defendant will have non-discretionary expenses of $672 per week.
Comparing the defendant's net weekly income, as derived solely from his social security benefits, to his net weekly non-discretionary expenses yields a deficit of $366 per week while he owns the marital home and $254 a week after he sells the marital home.
In an attempt to fend off the impact of the Parkinson's disease, the defendant underwent deep brain stimulation, a procedure in which electrodes are implanted permanently in the brain, powered by batteries, to simulate the secretion of dopamine. The batteries need to be replaced thirty-eight months after the procedure, and then every thirty-two months thereafter. The procedure helped to some degree with the plaintiff's gait and dystonia, but was far from a panacea.
In fact, when the defendant appeared in court and walked to the witness stand, the court observed the defendant move with a halting gait, demonstrating marked difficulty in maintaining his balance. The plaintiff also labors to enunciate his words in a manner similar to other notable Parkinson's sufferers, such as the actor Michael J. Fox.
The defendant has to take multiple medications for his disease. Between the deep brain stimulation and the medication, the defendant has suffered from such side effects as delusions, sexual outbursts and depression.
According to the plaintiff's testimony, the defendant's Parkinson's disease is a degenerative disease, and the defendant will not get better.
Based upon all of the above, the court finds that it is impossible for the defendant's health to improve enough to re-secure his former job as a sheet metal fabricator/installer, estimator or office worker. The court also finds that the defendant's inability to drive a car on a regular basis is a serious impediment to him gaining steady, full-time employment unless the defendant were to move further away from his children, to a town or city with bus service.
The defendant is allowed by Social Security to earn up to $1,130 a month in pay above and beyond his disability benefit without diminishing his disability benefit, but since having been granted his disability benefit, has never approached that amount of additional earnings. Presently, the defendant mows two lawns when needed, one for free and one for $30 each mowing. The defendant also performs house-sitting at one home in Lakeville, earning $300 a month for seven months a year. There was credible testimony that the defendant is still capable of performing some carpentry work occasionally, such as driving nails with a nail gun. These are the kind of jobs the defendant can perform today, jobs involving minimal physical and mental exertion. The court finds, however, that the defendant will only be able to work at such occasional jobs on an ad hoc basis and only to the extent that his degenerative disease does not further degenerate either his body or his mind.
The court finds that the defendant could obtain odd jobs such as house sitting, light labor and lawn mowing more frequently than he does now if he were to market himself effectively. The court finds that the defendant could, even taking into account his health, house sit three houses per year for approximately $2,100, mow two lawns on a regular basis at $30 per mow, for approximately $900 a year, and perform other odd jobs involving light labor for approximately $2,000 a year.
As a result of all of these factors, the court finds that the defendant's earning capacity is approximately $5,000 a year.
The parties maintained an NFP mutual fund, the total value of which at the time of trial was $51,753. As of trial, the plaintiff has aggregated $199,046, and the defendant $203,661, respectively, in retirement funds.
The marital home in Lakeville has equity of at least $465,860 and possibly as much as $478,035, depending on whether the information contained in the plaintiff's or the defendant's financial affidavit is more up-to-date as to the remaining mortgage principal.
The plaintiff's 2013 Toyota Highlander has a value of $27,184, a loan balance of $14,000 and equity of $13,184. The defendant's 2009 Volkswagen Jetta is paid for and has a value of $4,700.
The parties maintained a CHET college fund account for each of the minor children. Abigail's is in the amount of $18,654, and Andrew's is in the amount of $18,154. The court finds that the parties would have provided higher education support to the minor children had the parties remained married.
Because of the defendant's disability, each of the two minor children receive $503 a month from Social Security, or $116 per child per week. Although there was no evidence adduced at trial as to the duration of these children's social security benefits for their father's disability, the court takes judicial notice of the fact that such benefits terminate at the child's graduation from high school or two months after the child turns 19, whichever comes first.
Social Security Administration, " Disability Planner: Benefits for your Children, " available at https://www.ssa.gov/planners/disability/dfamily4.html (last visited September 23, 2016).
The parties have set forth in their respective affidavits, in addition to expenses shared in common, expenses specifically earmarked for the minor children. Having reviewed these entries, the court finds that reasonable and credible expenses specifically earmarked for the minor children amount to $48 per week per child.
The court also notes that factors perhaps outside of his control--including his Parkinson's disease, the deep brain stimulation treatment and the side effects of his medication--conspired to push the defendant's behavior further into the realm of the socially unacceptable in the last several years. The plaintiff adduced credible evidence that the defendant punched a hole in the wall of their home, sent her graphic texts and emails, made unwanted sexual advances on her, and on March 7, 2016, steered his car in the direction of a car driven by the plaintiff and occupied by Abigail, causing the plaintiff to believe that a head-on collision was imminent. As a result of this incident, the defendant was arrested for reckless endangerment in the second degree. These behaviors have also contributed to the demise of this marriage.
The court takes judicial notice of the date of this incident and the charge from the court's electronic criminal database.
IV
THE COURT'S ORDERS
Having reviewed each of the legal and equitable factors cited above and the facts found above, the court orders the following. The court finds that evidence referred to above supports the orders listed below.
The court awards the parties joint legal custody of the minor children, with the plaintiff being the primary residential and custodial parent. The defendant's visitation with the minor daughter shall be reasonable, but ultimately at the minor daughter's discretion, and shall be supervised by Susan Pereslugoff, Paul Vernali, Todd Vernali, Shannon Vernali, Keith Marks, Kristen Neary or anyone else to whom the parties agree in writing. The defendant's visitation with the minor son shall be reasonable, liberal and flexible. The defendant shall pick up the minor son at the end of the plaintiff's driveway, and shall not exit his vehicle. The defendant may attend all of the minor son's activities at any school he may attend, including the Salisbury School. The difference between visitation for the minor son and the minor daughter is largely based upon the deleterious effect that the incident of March 7, 2016 had on the daughter and the fact that the defendant seems to have, at least, a better relationship with his son at the present time.
The court allows the plaintiff to retain the social security disability benefit payment awarded to each child ($503 per month for each child for a total of $1,006 per month) as a result of the defendant's social security disability in place of an award of child support from the defendant. There is no child support order as a result of the plaintiff being permitted to retain the children's' social security disability benefits. This is a deviation from the Child Support Guidelines pursuant to the holding of Jenkins v. Jenkins, 243 Conn. 584, 589-90, 704 A.2d 231 (1998).
Each party is allowed to retain his or her respective retirement plans. The parties shall each receive one-half of their NFP Investment Plan. The parties shall list the marital home for sale at a mutually agreeable price, with net proceeds to be divided equally between the parties at the time of sale. The defendant shall be allowed to continue to live at the marital home until the date of sale. Until the date of sale, the defendant shall be responsible for timely payments of mortgage, taxes and utilities, and shall indemnify and hold the plaintiff harmless for such expenses. Until the home is sold, insurance costs pertaining to the marital home and repair costs shall be divided equally as between the parties. The court shall retain jurisdiction over any issues arising from the sale of the marital home.
The court orders the plaintiff to pay the defendant $370 per week in periodic alimony for a period of fifteen years. The court believes that both the weekly amount and the time period are fair for the following reasons. As mentioned above, the court has found that the defendant will not be able to regain the kind of employment that he had before contracting the Parkinson's disease and also that this disease is degenerative and that the defendant will not get better. Therefore, this time-limited alimony is not to be viewed as rehabilitative. It is meant to assist the defendant to pull together living expenses while supplementing his $5,000 per year earning capacity and his social security disability benefits. Further, the defendant will benefit substantially from the sale of the marital home. After it is sold, the defendant will have available to him a pot of money close to $200,000 after expenses. Moreover, as a result of this memorandum, the defendant will retain retirement proceeds of over $200,000 that he can access without penalty in twelve or so years and will receive more than $25,000 from the NFP mutual fund. Additionally, although the plaintiff gets to retain the control of the $1,006 per month awarded to the children because of the defendant's disability, these benefits will not continue much beyond the next two to three years for Andrew and the next four to five years for Abigail. Even though these benefits are limited to those time periods, the defendant is not obligated to pay child support, and the plaintiff will have to pay all of the child support for the two children after their social security benefits terminate. Moreover, although the parties disagreed in closing argument, it is highly unlikely that the defendant would owe additional federal income tax on the alimony and on supplemental income. See Internal Revenue Service Publication 915 (2015).
The court included equitable factors in its consideration of alimony amount and duration. Although many of the defendant's antisocial actions were likely caused by his disease, his deep brain stimulation and the side effects of his medication, the origin of these actions does not diminish their deleterious impact upon the plaintiff. Even before that, as mentioned supra, the defendant's behavior was largely responsible for the demise of the marriage, and it would be inequitable for the plaintiff to bear the onus of an alimony obligation with no endpoint.
The court, however, notes that the defendant's health may take a precipitous turn for the worse. Therefore, the court declines the plaintiff's request to order that the alimony be non-modifiable in amount and duration.
The minor children's CHET accounts shall be accessed before either party is obliged to make payments toward an educational support order. The court shall retain jurisdiction over issues arising from an educational support order.
Each party shall maintain a life insurance policy on his or her life with coverage in the amount of $500,000, naming as beneficiaries of each such policy two Trusts, one to be established for the benefit of each of the two minor children. The Co-Trustees of the Trusts shall be Laurie Grusauski, a maternal aunt, and Todd Vernali, a paternal uncle.
The plaintiff's life insurance policy shall also name the defendant as a beneficiary to secure the plaintiff's alimony obligation to the defendant during each of the five-year periods following the date of judgment as follows: for the first 5-year period, $215,000; for the second five-year period, $135,000 and for the final five-year period, $50,000.
In the event of the plaintiff's death, the amount set aside to secure the plaintiff's alimony obligation, as set forth above, shall be paid to the defendant and the remainder of the proceeds shall be paid in equal shares to each child's Trust. In the event of the defendant's death, the co-Trustees shall divide the proceeds of the defendant's life insurance policy equally to fund the Trust for each child.
Each child's Trust shall terminate when that child reaches the age of twenty-five. A distribution of-the Trust residue will be made to that child by the Co-Trustees at that time. The defendant shall maintain his life insurance policy until the younger child reaches the age of twenty-three. The plaintiff shall maintain her life insurance policy for the children's benefit until the younger child reaches the age of twenty-three and for the defendant's benefit until she is no longer obligated to pay alimony to the defendant. After the younger child reaches the age of twenty-three, the plaintiff may reduce the payout of her life insurance policy to an amount sufficient to secure the net present value of her lifetime alimony obligation to the defendant.
The plaintiff shall maintain health insurance for the benefit and on behalf of the minor children, as such insurance is available to her through her employment at a reasonable cost.
The parties shall mutually and fairly divide their personal property, with recourse to an attorney referee in the event of a dispute. Each party shall retain his or her respective car, the plaintiff, the Toyota and the defendant, the Volkswagon, and each shall be responsible for any loans and other expenses associated with each such vehicle and shall indemnify and hold the other party harmless thereon. Each party shall indemnify the opposing party for all obligations undertaken by each such party as set forth in this memorandum of decision. The plaintiff is accorded the right to claim both minor children as tax exemptions.
The marriage of the parties is hereby dissolved. Judgment of dissolution shall enter in accordance with the foregoing findings and orders.
So ordered.