Opinion
No. FA 06-4004613S
November 3, 2009
MEMORANDUM OF DECISION
This matter for dissolution of the parties' marriage is before the court on remand from the Appellate Court for trial of financial issues in the dissolution. See Wallbeoff v. Wallbeoff, 113 Conn.App. 107, 114, 965 A.2d 571 (2009). The parties appeared with counsel for hearing on September 15, 2009, at which time each one testified and offered certain exhibits into evidence. Thereafter, pursuant to an order entered that day, evidence was opened for an additional exhibit filed later, to which the defendant has not objected. Although stipulating to certain facts and financial orders, the parties disagree on alimony, child support, treatment of certain funds that the defendant received from the sale of his deceased father's house, and division of the defendant's IRA. The defendant has also requested an award of counsel fees and that financial sanctions be imposed against the plaintiff for late compliance with certain disclosure orders.
The remand order states as follows: "The judgment is reversed solely as to the financial orders, and the case remanded for a new trial on all financial issues."
As noted in this court's order of September 24, 2009, "the parties also stipulated, and this court ordered, that the evidence would be opened for the plaintiff to submit, no later than September 23, 2009, records of her support payments, and defendant had one week thereafter to request that the hearing be opened for yet additional evidence."
The defendant did object to certain other materials filed simultaneously as outside the scope of the court's order, and the court, concurring with that objection, ordered those additional matters would be treated as exhibits for identification only.
The parties filed a written stipulation that they have equally divided the equity in the former marital residence, that the defendant had refinanced the property and removed the plaintiff from the mortgage obligation, and that they had already divided all personal property, motor vehicles, and bank accounts to their mutual satisfaction. They also stipulated that the plaintiff would transfer to defendant, via a qualified domestic relations order (QDRO) half of her retirement account, but disagreed as to the date of valuation.
The marriage of the parties was dissolved by the judgment of the court, Shluger, J., on August 10, 2007. "In the absence of any exceptional intervening circumstances occurring in the meantime, the date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property." Sunbury v. Sunbury, 216 Conn. 673, 674, 583 A.2d 636 (1990). Although the same logic applies to alimony orders, the parties here have requested that the court enter support orders both as to the date of the dissolution and, because of substantial changes in each party's income since then, now.
At the time of the dissolution, the court approved and adopted a written parenting agreement of the parties dated June 14, 2007, providing for joint legal custody and not designating a primary custodial parent of their daughter, Rowan, who was born on April 27, 1994, and is now 15 1/2 years old. At hearing before this court, the parties agreed that they divide parenting time equally; and the court concludes that their physical custody plan is best described as shared physical custody.
Section 1a of that agreement provided, in relevant part, as follows: "Each party shall have reasonable and liberal visitation with the minor child. The parties do not desire to delineate specific parenting days; however, it is understood and agreed that the parties shall split equally parenting time with the minor child."
The plaintiff is 46 years old, in good health, and employed as a vice president of Firefly Partners, which she described as a small consulting firm that works with nonprofit organizations. She attended college for thee years, but did not graduate although she did obtain an e-business certification from Eastern Connecticut State University in 2000. She worked steadily during the marriage, first as the business operations manager at Cheese `n' Stuff in Hartford when the parties got married in 1990, then shortly thereafter at Planned Parenthood until 2008, when she obtained her present job, in which she earns $1,458 per week gross and $1,038 per week net after taxes. She also spends $103 per week on medical insurance for herself and Rowan. Her income at the time of the dissolution was $1,112.56 per week gross and $811 net, and she was then spending an additional $85 per week for medical insurance for herself and Rowan.
The defendant is 51 years old and has worked most of his life as a woodworker, a job that has not always provided steady employment. There were a number of times during the marriage when his employers went out of business or he lost his job due to lack of work, but, with the exception of 1999, when he had an extended period of unemployment, his gross earnings between 1990 and 2005 (the last year included in the statement of earnings from Social Security that he introduced into evidence) ranged from $28,000 to just under $40,000, and his annual wages were usually between $30,000 to $34,000, despite the frequent periods of unemployment. At the time of the dissolution he was unemployed, with no income, but had an earning capacity of at least $30,000 per year. He has since then become re-employed, and is earning $610 per week gross and $535 net after taxes, and he also spends $24 per week on health insurance premiums. He is a high school graduate, has no college education, but during his long period of unemployment in 1999 he did complete the course work for an E2 electrician's certification although he has never obtained that license or gone to work in that trade.
The marriage of the parties broke down primarily because the defendant began drinking heavily early in the marriage and became steadily less involved with and more distant from the plaintiff and their child. The plaintiff was responsible for most of the housework and was the primary breadwinner. Eventually coming to view the defendant as unmotivated to work either inside the home or at a job, the plaintiff decided to separate from the defendant in 2006 and left the home with Rowan. Although the parties now share equal time with Rowan, at trial before this court the defendant did not know his daughter's dress size, the name of her teacher or ophthalmologist, or the times and locations of her parent-teacher conferences for the last three years, none of which he had attended. The plaintiff pays for all of Rowan's apparel, school lunches, school supplies and field trips, haircuts, health and beauty supplies, extracurricular activities, unreimbursed medical expenses, gifts, personal expenses, and spending money (although she has never requested the defendant to share these expenses). The defendant testified that he offers his daughter spending money from time to time but that she tells him that she doesn't need any; and his current financial affidavit lists only $5 per week as spent on Rowan.
The Appellate Court ordered a new trial because the child support order "deviated from the [child support] guidelines, did not calculate the presumptively correct support order pursuant to the guidelines, did not make a specific finding on the record that application of the general rule would be inequitable or inappropriate under these circumstances and did not include a justification for the variance." Wallbeoff v. Wallbeoff, supra, 113 Conn.App. 113. "Section 46b-215a-3(a) of the Regulations of Connecticut State Agencies provides that the support amounts calculated under the child support guidelines `are presumed to be the correct amounts to be ordered . . .' Those amounts may be rebutted, however, `by a specific finding on the record that such an amount would be inequitable or inappropriate in a particular case . . .'" Lefebvre v. Lefebvre, 75 Conn.App. 662, 667, 817 A.2d 750, cert. denied, 263 Conn. 921, 822 A.2d 243 (2003). Under the guidelines, the "recommended current support order shall equal the presumptive current support amount for the noncustodial parent unless a deviation criterion . . . applies." (Emphasis added.) Regulations, Connecticut State Agencies, § 46b-215a-2b(c)(7). Although shared physical custody is a deviation criterion, the guidelines also refer to the custodial and non-custodial parent in terms of whether to approve such a deviation that reduces the amount of support received by the custodial parent.
The guidelines provide that "the presumptive current support amount for each parent is equal to that parent's share of the basic child support obligation . . ." Regulations, Connecticut State Agencies, § 46b-215a-2b(c)(6).
Section 46b-215a-3, Regulations, Connecticut State Agencies, captioned "Deviation criteria," provides, in relevant part, as follows:
(6) Special circumstances
In some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity. Such circumstances are limited to the following:
(A) Shared physical custody.
When a shared physical custody arrangement exists, deviation is warranted only when:
(i) such arrangement substantially reduces the custodial parent's, or substantially increases the noncustodial parent's, expenses for the child; and
(ii) sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation.
The parenting agreement of the parties does not, however, designate a custodial parent, which the guidelines define as "the parent who provides the child's primary residence." Id., § 46b-215a-1(8). (The guidelines describe a noncustodial parent as "a parent who does not provide the child's primary residence." Id., § 46b-215a-1(18).) Although the guidelines do not define "primary," the most common and ordinary meanings of that word are (i) "first in order of time or development," a definition that would not fit here, and (ii) "of first rank, importance, or value: principal." See http://www.merriam-webster.com/dictionary/primary. There is insufficient evidence here to find that one party's residence is of greater rank, importance, or value to Rowan than that of the other party. Although the word "principal" is usually taken to mean "most important, consequential, or influential: chief," the word can be used to refer to more than one. Splitting her time equally between her two parents, Rowan has two primary residences, in sense of principal residences. If the guidelines' reference to "the" primary residence is intended to limit a child to only one primary residence, however, the guidelines would not directly address this case, for this child does not have only one primary, in the sense of principal, residence. For half of the time, Rowan stays at her primary (in the sense of principal) residence provided by her mother, and for the other half of the time at her primary/principal residence provided by her father. Applying the terminology of the child support guidelines, each parent is a custodial parent half of the time; but it does not make sense to designate either one as a noncustodial parent for the time the child is with the other parent because each parent continues to maintain a primary/principal residence for Rowan even during times the child is not actually living there.
See http://www.merriam-webster.com/dictionary/principal.
See, e.g., http://ardictionary.com/Principal/11825, giving the following examples of usage of the word: "the principal officers of a Government; the principal men of a state; the principal productions of a country; the principal arguments in a case."
Merriam-Webster Online includes, as one of the primary definitions for the definite article "the," that it can be "used as a function word to indicate that a following noun or noun equivalent is a unique or a particular member of its class." See http://www.merriam-webster.com/dictionary/the.
There is no evidence that the shared custody arrangement here has resulted in any reduction in the plaintiff's expenses for Rowan, as she had to acquire shelter sufficient for her child and she pays for virtually all of Rowan's expenses, which are averaging $159.50 per week; but the additional meal responsibilities assumed by the defendant do increase his expenses for the child beyond what he would have incurred if a noncustodial parent with a normal visitation schedule (but there is insufficient evidence, on the other hand, to find that providing meals for her "substantially increases" the defendant's expenses above those of a noncustodial parent with a normal visitation schedule).
There is no evidence, however, that the shared custody arrangement has caused the defendant to incur additional shelter expenses, for the evidence shows that he planned to remain permanently in the family home even before the shared custody arrangement began. When the plaintiff decided to separate from the defendant in 2006, she asked him to leave the family home, but he replied "they'll have to take me out of this house feet first." She then left the home and took Rowan with her.
The child support guidelines commission has described as the "normal visitation schedule" for a noncustodial parent as "typically consist[ing] of two overnights on alternate weekends; alternate holidays; some vacation time; and other visits of short duration, which may occasion an overnight stay during the week." Child Support and Arrearage Guidelines (2005), preamble § (j)(4), p. xiii.
The facts of this case thus do not fit neatly into the nomenclature of the child support guidelines. Under these factual circumstances, it would be inappropriate and inequitable, based on the equally shared custody arrangement, other equitable factors described herein, and other deviation criteria discussed herein, for the support order to require only one party to pay the presumptive support amount to the other. The Commission for Child Support Guidelines, moreover, has recognized the necessity of crafting support orders in shared custody cases that address the individual contours of each case:
Section 46b-215a-3(b), Regulations, Connecticut State Agencies, provides, as a criterion for deviating from presumptive support amounts, as follows:
(6) Special circumstances
In some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity. Such circumstances are limited to the following:
(D.) Other equitable factors.
The commission continues to reject a "brightline" definitional test as well as a formula approach to shared custody situations to discourage disputes over time-sharing as a means of affecting support amounts. The commission believes the approach continued in these regulations leaves sufficient room for the exercise of judicial discretion while providing a measure of predictability for the parties.
Child Support and Arrearage Guidelines (2005), preamble, § (h)(4), p. xiii. The court concludes that, under the circumstances of this case, the most equitable support order is to offset the difference between each party's presumptive amount (or, at the time of judgment, a hypothetical presumptive amount based on the defendant's earning capacity), allocate each party a share of their combined regularly recurring reasonable expenses for Rowan other than food and shelter based on the resulting respective shares of combined net weekly income (or earning capacity), and enter a support order for the difference. Such an order will provide each party with sufficient funds to meet Rowan's needs, although each party may have to reduce shelter or other expenses since together they have less combined net income than necessary to meet their combined reasonable net living expenses. These orders also take into consideration, as a deviation factor, the provision of alimony.
The plaintiff's proposed orders requested that "[n]either party shall pay child support one to the other," that she "shall be responsible for paying for the child's basic necessities (i.e., clothing, school supplies, etc.)" that each party "shall be responsible for the child's food and entertainment while they are exercising visitation," and that they divide work-related daycare and unreimbursed medical expenses equally. This proposal differs from the parties' oral stipulation at trial for this court to adopt Judge Shluger's order that the husband would contribute $500 per year for the child's extracurricular expenses, or 50%, whichever is less. The defendant's proposed orders asked that the court order the plaintiff to pay child support of $125 per week as "a deviation from the presumptive amount . . . due to shared physical custody."
The orders adopted by this court do not take either party's approach. The plaintiff's proposed orders do not give adequate consideration to the significant disparity between the parties' net incomes, while the defendant's proposed orders overlook the significant disparity in their financial contributions to their regularly recurring expenses for Rowan beyond shelter and food. The "offsetting" approach adopted by the court here is similar to the methodology adopted by the child support guidelines for split custody, which the guidelines define as "a situation in which there is more than one child in common and each parent is the custodial parent of at least one of the children." Regulations, Connecticut State Agencies, § 46b-215a-1(23). "In a split custody situation, . . . a single support obligation is calculated by offsetting theoretical presumptive current support amounts for each parent . . ." Id., § 46b-215a-2b(d). The Child Support Guidelines Commission explained that the logic underlying this offsetting approach was "to correctly apportion their combined income based on a consistent application of the child support guidelines." Child Support and Arrearage Guidelines (2005), preamble, § (j)(4) p. vii. This court's orders also seek to apportion the parties' combined income to the child's needs and expenses based on their respective shares of that income, but it would be inequitable for such an offsetting approach to overlook the significant disparity in the parents' expenditures for Rowan's expenses beyond food and shelter.
Section 46b-215a-3(b), Regulations, Connecticut State Agencies, provides, as a criterion for deviating from presumptive support amounts, as follows:
(5) Coordination of total family support
In some cases, child support is considered in conjunction with a determination of total family support, property settlement, and tax implications. When such considerations will not result in a lesser economic benefit to the child, it may be appropriate to deviate from presumptive support amounts for the following reasons only:
(B) provision of alimony . . .
At the time of the judgment, since the defendant then had no income and, under the child support guidelines, the presumptive amount is based on a party's present actual income, the presumptive amounts were for the plaintiff to pay support of $148 per week and defendant to pay no support; but it would have been inequitable at the time of judgment not to deviate from the presumptive amount for the defendant because he then had an earning capacity of at least $30,000 per year ($577 per week gross and $492 per week net). If the defendant had income at his minimum earning capacity of $30,000 per year at the time of judgment, the parties' respective presumptive amounts would have been $152 for plaintiff and $101 for defendant. Offsetting those amounts would result in payment of $51 per week to the defendant. But since he would then have 39% of combined net income, he would be responsible for that percentage of Rowan's reasonable and regularly recurring expenses. The only evidence the court has as to the parties' reasonable regularly recurring expenses then for Rowan, other than food and shelter, is the sum of $40 listed on the plaintiff's financial affidavit submitted at the first trial, 39% of which is $15.60. Subtracting that amount from $51 results in a weekly child support order, rounded to the nearest dollar, of $35 from the date of judgment to the present.
Section 46b-215a-2b, Regulations, Connecticut State Agencies, provides, in relevant part, as follows:
(c) Determining the amount of current support
The procedures in this subsection shall be used, subject to subsections (d) and (e) of this section, to determine the current support component of the child support award
(2) Determine the net weekly income of each parent
(4) Determine each parent's share of the basic child support obligation Except as provided in subparagraph (A) of this subdivision, each parent's share of the basic child support obligation is determined by calculating each parent's share of the combined net weekly income, . . .
(6) Determine the presumptive current support amount
The presumptive current support amount for each parent is equal to that parent's share of the basic child support obligation, except where there is an adjustment for social security dependency benefits in accordance with subdivision (5) of this subsection.
Section 46b-215a-3(b), Regulations, Connecticut State Agencies, provides as follows:
(b) Criteria for deviation from presumptive support amounts
(1) Other financial resources available to a parent
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; . . .
Section 46b-215a-2b, Regulations, Connecticut State Agencies, provides that the weekly child support order "may be rounded to the nearest dollar."
Based on the parties' current incomes, the plaintiff's presumptive support amount is presently $175 per week and the defendant's is $96, and offsetting those amounts would result in payment of $79 per week to the defendant. The plaintiff would then have 59% of combined net income and the defendant 41%, percentages that are appropriate for allocating the child's regularly recurring reasonable expenses (other than medical expenses, which are addressed below, and food and shelter) already being borne by the parties. The parties' most recent financial affidavit provide more detail than at the time of judgment about their expenses for Rowan in addition to food and shelter. The plaintiff's affidavit shows that she spends $159.50 per week for Rowan, of which $33 are for medical expenses and all of these expenses appear reasonable. The defendant's affidavit lists only $5 (an amount that the court also finds reasonable) as specifically spent on Rowan, and he acknowledged at trial that she rarely asks him for any money. The defendant's 41% share of the $131.50 per week in reasonable non-medical expenses for Rowan shown on the parties' two financial affidavits ($126.50 per week on plaintiff's, $5 per week on defendant's) is $53.92, of which he already pays $5. Subtracting the remainder of $48.92 from $79 results in a weekly child support order henceforth of $30 per week (rounded to the nearest dollar).
The guidelines require that a child support order shall provide not only for current support but also allocation of unreimbursed medical expenses and qualifying child care expenses; Regulations, Connecticut State Agencies, § 46b-215a-2b(g) and (h); based on their respective shares of "combined net disposable income," a term not expressly defined by the child support guidelines but which the guidelines use to refer to each party's income after payment of alimony and child support. In this case, each party's share of those expenses is 50% between the date of judgment and now, and prospectively the plaintiff shall be responsible for 53% of those expenses and the defendant for 47%. Since the plaintiff regularly incurs $33 per week for Rowan in medical expenses at present, and the defendant's 47% share of those expenses is $15.51, the prospective weekly support payment by plaintiff shall be reduced by that amount to take into consideration those regularly recurring medical expenses. (The court finds no reason for rounding to the nearest dollar as to this reduction in the weekly payment.)
Section 46b-215a-2b, Regulations, Connecticut State Agencies, provides, in relevant part, as follows:
(g) Determining the health care coverage contribution
Subject to section 46b-215a-3 of the Regulations of Connecticut State Agencies, each child support award entered under this section shall include a provision for either parent to contribute to the health care coverage of the child in accordance with this subsection.
(h) Determining the child care contribution
(1) General rule
Subject to section 46b-215a-3 of the Regulations of Connecticut State Agencies, the noncustodial parent shall be ordered to pay the custodial parent a child care contribution as part of each child support award entered under this section. Such contribution shall be for the purpose of reimbursing the custodial parent for a portion of the child care costs incurred on behalf of the subject child.
Section 46b-82 of the General Statutes specifies the factors a court must consider in determining alimony. "The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight . . . As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony." (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn.App. 665, 669-70, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). The defendant's proposed orders seek alimony of $275 per week for nine years, nonmodiflable as to amount or duration. His request that a nine-year term be nonmodifiable as to duration shows confidence on his part that within that time period he will become capable of meeting his needs on his own. In his attorney's closing argument, the defendant emphasized the 17-year length of the marriage and the plaintiff's greater income, both factors to be considered, but neglected the defendant's fault in the breakdown of the parties' marriage, a factor the court also finds deserves weight here. There neither was nor is enough combined net income to meet the legitimate expenses of each party, either at the time of judgment or now. After considering the evidence here in light of the statutory factors, the court will order the plaintiff to pay alimony of $100 per week from the date of judgment to the present and henceforth $160 per week; for a total period of eight years from the date of judgment.
Section § 46b-82(a) provides in relevant part: "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 causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment."
All items listed as assets on the parties' financial affidavits are property subject to equitable distribution by the court. In ordering division of property here, the court has considered the evidence in light of the factors set forth in General Statutes § 46b-81. The parties submitted a written stipulation at trial that they had satisfactorily divided the equity in their marital home (which the defendant has refinanced), their personal property, bank accounts, and motor vehicles to their satisfaction. Their attorneys also reported at trial that the parties stipulated to this court's adopting paragraphs 2, 5, 6, 7, 8, 10, 12, 14 and 15 of Judge Shluger's prior orders, that vehicles bought by either party since then shall be awarded to that party, and that the parties had each agreed to be responsible for the debts listed on their most recent financial affidavits. The parties stipulated at trial that any funds Rowan inherits from her paternal grandparents will be spent first on her college expenses.
Section 46b-81(c) of the General Statutes states as follows: "In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-81, 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, 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."
In view of the court's child support order, the court will not adopt this paragraph which provided that the husband would contribute $500 per year for the child's extracurricular expenses, or 50%, whichever is less.
The parties also stipulated that the plaintiff would transfer "50% of her retirement account" to the defendant by qualified domestic relations order, but they disagree as to the date the court should use for valuing the portion to be divided equally. The plaintiff listed the value of her IRA on the financial affidavit dated September 15, 2009, that she submitted at the trial before this judge as $41,154.34. Based on her testimony that the IRA is worth 28% less now than on the date of dissolution, the value of the IRA at the time of the dissolution was probably more than the $42,000 that she listed on her August 9, 2007, financial affidavit submitted into evidence at the trial before Judge Shluger, probably instead between $52,000 and $53,000 (which is 28% more than the value listed on her current financial affidavit). As noted earlier, the appropriate time for valuing property is the date of dissolution unless there are exceptional intervening circumstances, and the court held in Sunbury v. Sunbury, supra, 216 Conn. 673, that an increase in the value of property following the date of dissolution does not constitute such an exceptional circumstance, a finding followed by the Appellate Court in Kremenitzer v. Kremenitzer, 81 Conn.App. 135, 139, 838 A.2d 1026 (2004), which held that "[l]ogically, there is no reason why the same date should not be used when there has been a decrease in the value of property." The court thus orders that the IRA should be divided based on its value at the time of the judgment of dissolution.
The other property issue in dispute between the parties concerns $102,000 from the sale of the home of the defendant's father in Virginia deposited into a joint account in the names of the defendant and his mother after his father died in 2004. The plaintiff testified that the defendant told her that $32,000 of this money was Rowan's. The defendant testified that these funds belonged to his mother and that neither he nor Rowan would inherit any money from either of his parents until his mother's death. He did agree, however, that $32,000 of the $102,000 had been intended for Rowan. While still together, the parties spent $5,000 of the money for Rowan and agreed to set aside the remaining $27,000 for her college expenses. When the plaintiff left the marital home in 2006, two-thirds of the $102,000 still remained, but by the time of the dissolution trial before Judge Shluger in August 2007 the defendant had spent all but $800.
From the court's review of the family trust document of the defendant's parents (plaintiff's exhibit five) and the conflicting testimony of the parties, it is impossible to determine whether the $32,000 was a distribution to Rowan from the father's estate, a gift to her from the defendant's mother, or a gift from the defendant to her. The parties' joint testimony makes it clear, however, regardless of the circumstances under which the defendant acquired those funds, that he was in control of the money, that he agreed that $32,000 of that money, though in his hands, was intended by its donor to be for Rowan and would be reserved for her benefit, and that $27,000 of that amount is no longer available to pay for their daughter's college expenses. Under these circumstances, the defendant was in a confidential relationship with his daughter, Rowan, and owed a fiduciary duty to her to keep these funds for her benefit and hold the $27,000 in constructive trust for Rowan. "`A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.' The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment . . . Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it." Cohen v. Cohen, 182 Conn. 193, 202-03, 438 A.2d 55 (1980), quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 336, 122 N.E. 378 (1919) (Cardozo, J.). He is therefore ordered to return those funds to a college fund for the benefit of Rowan.
The defendant's proposed orders have also asked that the plaintiff contribute $15,000 toward the cost of his counsel fees, while the plaintiff asks that the parties bear their own legal expenses. Section 46b-62 of the General Statutes governs the award of attorneys fees in dissolution actions and provides that "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 [General Statutes §] 46b-82." The court must take care that its determination of this question does not substantially undermine its other financial orders:
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third, where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988). Under the recent decision of Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007), a court also has "discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct." On the facts of this case, the court will award no counsel fees.
The remaining issues concern the defendant's motions for contempt #136 and sanctions #139. The contempt motion, filed April 7, 2009, claims that the plaintiff owed $4,000 in support arrearages as of that date, based on Judge Shluger's child support and alimony orders. At the time of trial, the defendant was claiming that the arrearage had increased to $16,790. Immediately before official release of the Appellate Court decision reversing the original financial orders on March 23, 2009, the alimony and child support orders had been in effect for 83 weeks, with a total owed under those orders during that time period of $22,493. The evidence shows that, between the date of judgment and the time of trial before this court, the plaintiff paid support to the defendant in the amount of $16,822. Her last support payment was made on January 31, 2009, and she obviously was noncompliant with Judge Shluger's orders prior to the Appellate Court decision, with an arrearage of $5,671. She offered no legitimate excuse or reason for not complying with the court's orders through March 23, and the motion for contempt is granted for that time period. Minimal time was spent on this issue in trial, however, and the court exercises its discretion not to award counsel fees.
Section 46b-87 of the General Statutes provides, in pertinent part, as follows: "When any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt . . ."
The Appellate Court decision vacated those financial orders, however. Under this court's orders, she owes $15,660 in alimony and child support for the 116 weeks between the date of judgment and the date of this decision. She has paid more than that, and the excess of $1,162 shall be deducted, on a weekly basis, from alimony owed at the rate of $30 per week until recouped.
The defendant's motion for sanctions #139 is based on the order of Judge Abery-Wetstone on June 1, 2009, that the parties should submit all discovery compliance to each other within three weeks of the date of trial, or face a sanction of $100 per day. Trial before this judge took place on September 15, 2009, and three weeks before that was August 25, 2009. Plaintiff filed her compliance with discovery on September 11, which was 17 days after the date set by Judge Abery-Wetstone. The motion is therefore granted, and, pursuant to her order, the plaintiff shall pay the defendant $1,700 as sanctions for late compliance.
ORDERS
After considering all of the evidence in light of the parties' proposed orders, the arguments of counsel, and the statutory and regulatory criteria set forth in General Statutes §§ 46b-62 and 46b-87 as to counsel fees, § 46b-81 as to equitable distribution of property and debt, § 46b-82 as to alimony and counsel fees, § 46b-84 as to support and medical insurance for a minor child, and § 46b-215a-1 et seq., Regulations, Connecticut State Agencies, as to child support, and court decisions construing the same, the court hereby enters the following orders:
1. Orders by Agreement of the Parties:
a. The following orders of Judge Shluger are adopted by agreement of the parties:
(1) The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to General Statutes § 46b-56c.
(2) The wife will maintain medical and dental coverage for the minor child as available through her employment at a reasonable expense.
(3) The wife shall quit-claim to the husband the marital home and the husband shall use his best efforts to refinance the home mortgage in his own name forthwith. Upon said refinance, he shall pay to the wife the sum of $37,400. If he is unable to refinance said mortgage, he shall execute to the wife a note in said amount plus 4% per year interest secured by a mortgage on said home payable upon his remarriage, the death of either party, his ceasing to use said home as his primary residence or upon the high school graduation of the minor child whichever is first. Said debt shall not be dischargeable in bankruptcy. He shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the wife harmless and indemnify her for any such expenses.
(4) The husband shall retain his trailer, his truck, and his 2001 VW vehicle. The wife shall retain her 1999 VW vehicle.
(5) Each shall keep their own bank accounts.
(6) The parties shall file their 2005 and 2006 tax returns separately. The wife may take the home mortgage interest and tax deductions for 2005 and the husband for 2006. The husband may take the tax dependency exemption for 2005 and the wife for 2006.
(7) Any and all moneys received by the minor child from a future inheritance or trust shall be immediately placed in an interest-bearing account with both parties as signatories. Said money shall be used for her college education.
(8) The wife shall maintain her current $300,000 life insurance for the benefit of the child and the husband shall use his best efforts to obtain and maintain $100,000 life insurance for the child's benefit until the child reaches 23 or completes college, whichever shall occur first.
b. Other orders entered by agreement:
(1) Each party shall retain any motor vehicles or personal property acquired since the judgment of dissolution.
2. Other orders retarding equitable distribution
a. The plaintiff shall transfer to the defendant one-half of the amount in her IRA retirement account on the date of the judgment of dissolution, by way of QDRO if necessary. The parties shall divide equally the reasonable cost of any QDRO, to be prepared by an attorney selected by plaintiff.
b. Except as otherwise ordered herein, each party is awarded the property listed on that party's financial affidavit, in the party's possession, or to which that party has title.
c. Each party shall be responsible for its own debts and indemnify and hold the other harmless therefrom.
3. Alimony
a. The plaintiff shall pay alimony in the amount of $100 per week from the date of judgment until the date of this decision, and thenceforth $160 per week, for a total period of eight years from the date of judgment. Alimony shall terminate upon death of either party or the defendant's remarriage. Alimony may be modified or terminated, as the factual circumstances warrant, should defendant cohabit with another per General Statutes § 46b-86(b).
b. In view of plaintiff's overpayment of alimony in the amount of $1,162 between the date of judgment and the present, based on the present orders, she shall be entitled to a credit on alimony in the amount of $30 per week until that amount has been recouped.
4. Orders related to the minor child
a. The plaintiff shall pay current child support in the amount of $35 per week from the date of judgment until the date of this decision, and thenceforth $30 per week until the minor child turns 18 or, if then still in high school, until the first of her turning 19 or graduating from high school.
b. From the date of judgment until the date of this decision, the plaintiff shall be responsible for 50% and the defendant for 50% of unreimbursed medical expenses and qualifying child care expenses. Henceforth, the plaintiff shall be responsible for 53% and the defendant for 47% of such expenses. The defendant's 47% share the of plaintiff's present regularly recurring medical expenses in the amount of $33 per week for Rowan shall result in an offset against current child support of $30 per week in the amount of $15.51 in weekly support paid to the defendant; hence, under the present orders for child support, the plaintiff will pay the defendant $14.49 per week.
c. If health insurance for the minor child is not available at a reasonable cost at the plaintiff's place of employment, the defendant shall provide such insurance if available to him at a reasonable cost through his place of employment. If not available to either party at a reasonable cost, they shall cooperate in placing and maintaining her on HUSKY or other publicly-funded health insurance available to her.
d. The defendant shall immediately return $27,000 to Rowan's college fund, from which withdrawals may not be made except upon written agreement of both parties or pursuant to court order.
5. Wane Garnishment
Pursuant to General Statutes § 52-362, immediate wage withholding from plaintiff's earnings is hereby ordered for payment of alimony and child support.
Section 52-362 of the general statutes provides, in pertinent part, as follows: "(b) The Superior Court and any family support magistrate shall issue an order for withholding pursuant to this section against the income of an obligor to enforce a support order when the support order is entered or modified or when the obligor is before the court in an enforcement proceeding. The court shall order the withholding to be effective immediately or may, for cause or pursuant to an agreement by the parties, order a contingent withholding to be effective only on accrual of a delinquency in an amount greater than or equal to thirty days' obligation.
6. Taxes exemption for the minor child
The parties shall thenceforth alternate the tax exemption and deduction for the minor child for all years hereafter, defendant in odd-numbered years, plaintiff in even-numbered years.
7. Sanctions
Plaintiff shall pay defendant $1,700 as sanction for late compliance with Judge Abery-Wetstone's order of June 1, 2009.