Opinion
FA166101751
09-27-2017
Scott York v. Nancy Gunderman-York
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth L. Shluger, J.
The plaintiff initiated this action for dissolution of marriage with a complaint that was returned to the court on September 20, 2016. The court finds that it has jurisdiction and that all statutory stays have expired.
A limited contested trial was held before the undersigned on September 28, 2017. Both parties appeared at trial and were represented by counsel.
The court has fully considered the criteria of General Statutes § § 46b-81, 46b-82, 46b-84, 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 and the defendant whose maiden name was Gunderman were married on December 7, 2005 at Niantic, 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 have been no children born to the wife since the date of the marriage.
5. Neither party has received assistance from any State or local agency.
6. At the time of the marriage, the parties had some assets, including the wife's premarital retirement account presently valued at $86,500 and the net proceeds from the sale of the wife's pre-marital condominium in the amount of $16,700. Most of the marital estate, however, was accumulated during the course of the marriage.
7. Both parties complained about the behaviors of the other during the marriage, but it does not appear to the court that either party is more or less responsible for the cause of the dissolution.
8. The parties have been separated for approximately one year with the husband vacating the marital residence.
9. The principal assets of the marriage are two pieces of real estate. There is the marital residence which the husband values at $320,000 with a mortgage of $79,000 and a home equity line of credit of $127,000 plus an investment property which he values at $135,000 with no mortgage. Thus, the husband values the real estate as being worth $249,000 net of all loans. The wife values the marital residence at $290,000 but with an $85,000 mortgage and a $129,000 home equity loan and the investment property valued at $180,000 for total equity of $256,000. Thus, while the parties have differing values of their real estate, they come out very close to the same total value. In addition, the husband has mutual funds in the amount of $16,000, retirement accounts valued at $56,000, two 529 accounts in the amount of $6,500 (which he established for his grandchildren), a Dodge Ram truck with a negative equity of $2,000 and $15,000 which he withdrew from his retirement account on the eve of filing the dissolution papers. The wife has a bank account valued at $1,100, a BMW automobile which she values at $2,000, a Ford F150 valued at $6,500, a Ford Explorer valued at $800 and a premarital IRA valued at $86,500. There presently exists as marital debt the husband's credit card debt of $33,000, the husband's debt to his mother in the amount of $16,000, the wife's credit card debt in the amount of $12,000, and the wife's student loan for her daughter.
10. Both parties are 53 years old and both are in good health.
11. The husband is a corrections officer with the State of Connecticut, who earns a base salary of approximately $61,000. In 2015, with significant overtime, he earned $120,000. In other years, he earned $90,000 per year and in 2017, he anticipates earning $75,000. He is eight years away from retirement. In addition, the husband has skills as a contractor and could earn additional income as a contractor if he so desires.
12. The wife works in a hair salon earning approximately $21,000 per year and has been a licensed real estate agent since approximately 2005. It does not appear that the wife has ever earned more than $10,000 per year in the real estate business, but continues to work in that profession.
13. During the course of the marriage, the husband worked as a corrections officer and the entirety of his retirement assets were earned during the course of the marriage. The wife always worked two jobs, first at JCPenney for 20 years and later in the salon business while also working in real estate. In addition, the evidence was uncontroverted that the wife was primarily responsible for cooking, cleaning, shopping, yard work and caring for their respective teenaged children when the children lived with them.
14. The marital home was purchased jointly in 1997 with a construction loan and the wife's down payment and then completely gutted and rehabbed. The husband did the lion's share of the construction work, however, the wife assisted with painting, clean up and scores of dump runs. In addition, the wife's father did the electrical work and the wife's brother-in-law did the plumbing work. It appears that the husband was responsible for more of the " sweat equity" than the wife but both contributed significantly. All of the materials were purchased on the wife's credit cards and periodically, the mortgages were refinanced to pay off those debts as well as other bills. Curiously, the husband considered these credit card expenses to be " her credit card debt" rather than viewing it as joint debt incurred for a common goal.
15. The parties recently purchased an investment property in Groton for $60,000 taking out a home equity line of credit on the marital residence in the amount of $120,000. There is presently a tenant in said property, whose rent pays the mortgage, taxes and insurance for said investment property.
16. The primary dispute is that the wife wishes to retain the marital residence so she can be close to her father, who lives in a trailer on a piece of the land which was formerly part of the marital residence. She then requests that the investment property in Groton be sold to help pay down the mortgage. The problem with this proposal is that there are not enough other assets to fairly compensate the husband. While the court appreciates the fact that the wife would like to remain close to her father, this is an entirely different scenario than if there were minor children and the need to maintain the marital residence was paramount.
17. The second main dispute revolves around the husband's pension which was completely accumulated during the marriage. He believes that he should retain 75% of his pension and that she should get 25%.
18. The third main dispute revolves around alimony. The husband is proposing alimony in the amount of $100 per week for a period of three years. The wife is proposing alimony in the amount of $400 per week for a period of six years. It is clear to the court and to both parties that there will be an alimony component to the court's orders. The husband is presently paying alimony in the amount of $100 per week plus the mortgage, taxes, insurance and maintenance for both real estate parcels. It should also be noted that this alimony order was entered on January 5, 2017 following a hearing wherein the husband wrongfully insisted that his overtime, which had previously been abundant, had ended.
LEGAL DISCUSSION
PROPERTY DISTRIBUTION
General Statutes § 46b-81 provides:
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 or to a third person or may order the sale of such real property, without any act by either spouse, when in the judgment of the court it is the proper mode to carry the decree into effect.
A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, 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 Superior Court may assign to either spouse all or any part of the estate of the other spouse . . . In fixing the nature and value of the property, if any, to be assigned, the court, after considering all 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. Zern v. Zern, 15 Conn.App. 292, 295, 544 A.2d 244 (1988).
The court in Lopiano v. Lopiano, 247 Conn. 356, 363-64, 752 A.2d 1000 (1998), held:
The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or the wife all or any part of the estate of the other . . . 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 . . . 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, 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 . . . This approach to property division is commonly referred to as an all-property equitable distribution scheme. See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01 [2][a][v], p. 37-19. [Section 46b-81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power. A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series: Family Law and Practice with Forms (1991) § 27.1, pp. 398-400." (Emphasis in original.) Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995). In fact, the court has the authority to assign the debts and liabilities and to order one party to assume the joint liabilities of both parties. Bento v Bento, 125 Conn.App. 229, 235, 8 A.3d 531(2010).
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 575 (2007).
The court in Picton v. Picton, 111 Conn.App. 143, 958 A.2d 763 (2008) held that " an equitable distribution of property should take into consideration [each spouse's] contributions to the marriage, including homemaking activities and primary caretaking responsibilities" and that " a determination of each spouse's contribution within the meaning of . . . § 46b-81 includes nonmonetary as well as monetary contributions." Id., 153.
ALIMONY
C.G.S. § 46b-82 provides:
(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. The order may direct that security be given therefore on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. 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 causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment.
(b) If the court, following a trial or hearing on the merits, enters an order pursuant to subsection (a) of this section, or section 46b-86, and such order by its terms will terminate only upon the death of either party or the remarriage of the alimony recipient, the court shall articulate with specificity the basis for such order.
TIME LIMITED ALIMONY
The court in Marmo v Marmo, 131 Conn.App. 43, 26 A.3d 652 (2011) held:
" The traditional purpose of alimony is to meet one's continuing duty to support . . . [C]ourts have begun to limit the duration of alimony awards in order to encourage the receiving spouse to become self-sufficient." Roach v. Roach, 20 Conn.App. 500, 506, 568 A.2d 1037 (1990). " [U]nderlying 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 . . . A time limited alimony award generally is for rehabilitative purposes but other reasons may also support this type of alimony award . . ." Another valid purpose for time limited alimony is to provide interim support until a future event occurs that makes such support less necessary or unnecessary . . . In Wolfburg, [ supra, 27 Conn.App. at 402, 606 A.2d 48] our review of the record revealed that the time limited alimony award was found to provide interim support until the minor child reached the age of majority . . . This constituted a valid purpose for an award of time limited alimony. Other future events that may require interim support through an award of time limited alimony include occurrences such as a bond maturation, trust disbursement, or mortgage maturation."Ippolito v. Ippolito, 28 Conn.App. 745, 752, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).
In this case, it is clear that the wife has and will continue, for a short period of time to require some financial assistance from her husband, who clearly, has greater earnings and a greater earning capacity. If the court simply compares his expected earnings of $75,000 for 2017, and her expected earnings of $28,000, there is a gross disparity in income. If the husband paid to the wife $400 per week, or $20,800 per year in alimony, it would be tax deductible to him and taxable to her and he would still have significantly more disposable income.
Considering the duration of the alimony award, it is clear to the court that the wife has spent perhaps too many years in the real estate field for too little money and should consider other options sooner rather than later.
ORDERS
The court orders the following:
1. The court orders the husband to pay periodic alimony to the wife in the amount of $400 per week. Said alimony shall be taxable income to the recipient and shall reduce the gross income of the payor. Said alimony will terminate upon the earlier of three years, the death of either, or the wife's remarriage or civil union. It is non-modifiable as to amount and term.
2. Both properties shall be immediately placed for sale with a realtor, other than a Caldwell Banker realtor, to be mutually agreed. The parties will cooperate with the realtor as to repairs necessary to list and an asking price. Repairs shall be shared equally. The wife shall be permitted to reside in the former marital residence during the sale, and shall be responsible for the first mortgage, taxes, insurance and utilities. All rental income from the Groton property shall be applied to the home equity line of credit of the former marital residence and the taxes and insurance on the Groton property. Should there no longer be rental income, the parties shall share these carrying costs equally.
3. From the sale of the first property, the parties shall pay the mortgages (if the first property sold is the East Lyme property), the husband's Cabella credit card, reimburse the wife her down payment in the amount of $16,700, and $6,500 which he contributed to 529 accounts for his grandchildren. The net proceeds remaining from the sale of both properties, after the payment of costs of real estate sales, shall be shared equally. Net Proceeds shall be defined as the proceeds remaining after the payment of all reasonable costs of the sale as is customary in New London County and shall include all repairs and/or alterations that might be required by the buyer's lender to effectuate the closing of the purchase contract that had been signed by the parties.
4. The court will retain continuing jurisdiction regarding the sale of the real estate parcels.
5. Each party will maintain their own medical insurance.
6. Each party will retain the motor vehicles as listed on their respective financial affidavits and be solely responsible for any expenses and debts associated therewith. Each party shall cooperate with the other to transfer any titles, registrations and insurances.
7. As to the personal property located in the former marital residence, the parties shall have 30 days to work out an agreed-upon division. If they are unable to do so, the parties shall employ Attorney Timothy Lenes, who will arbitrate the issue with the parties who will be equally responsible for the costs of same.
8. Each party will retain their respective retirement accounts in their entireties and neither party shall make a claim against the accounts of the other.
9. Each shall keep their own bank accounts.
10. The wife shall be entitled to 50% of the husband's Wells Fargo mutual fund account valued as of the date of dissolution.
11. Except as set forth herein, each party shall be solely responsible for the debts and liabilities as set forth on their respective financial affidavits filed with the court. They shall hold harmless and indemnify the other from all liability therefrom.
12. Each shall pay their own counsel fees.
13. The wife's prior name, Nancy Lynn Gunderman is ordered restored.
14. Dissolution may enter.