Opinion
No. FA 03-0484826S
May 13, 2005
MEMORANDUM OF DECISION
The principal issues in this proceeding to dissolve the parties' 27-year marriage, brought with a return date of February 10, 2004, are financial ones. Each party seeks award of the marital home, worth $350,000 with no mortgage debt, and more than three-quarters of the net value of the marital estate, worth approximately $750,000. The wife also asks for lifetime alimony of $250 per week, while the husband has said he is willing to pay alimony of $50 per week for a year. Parenting orders for the parties' remaining minor child are not in dispute, the parties agreeing to joint legal custody, primary residence with the mother. The parties appeared with counsel for trial on January 25 and 26 of this year, testified, and offered certain exhibits into evidence.
The court has observed the demeanor of the parties and witnesses and evaluated their credibility and examined all the exhibits. The court has carefully considered all of the evidence and facts offered by the parties at trial, including their sworn financial affidavits, the testimony and exhibits presented into evidence, and the parties' proposed orders, claims for relief and closing arguments according to the standards required by law. The court has carefully considered the statutory criteria for dissolving a marriage and entering orders regarding alimony and the equitable division of property and debt.
The parties were married in Stratford, Connecticut, on October 15, 1977, and have had four children. The two oldest, Katherine and Laura, are 25 and 23 years old, respectively. Their third daughter, Diana, was born on August 30, 1984, is 20 years old and is in (or has just concluded) her junior year at Hofstra University. Their youngest child, Carolyn, born on April 10, 1991, is 14 years old and in the 8th grade. Both parties have resided in Connecticut continually for more than one year prior to the bringing of this action. Neither party has received state or municipal financial assistance. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation. All statutory stays having expired, the court has jurisdiction to dissolve the marriage.
Both parties are fifty years old and in good health. Ms. Young has been on antidepressant medication, but is fully able to work and care for herself and raise their child. This is the first marriage for each. They met in their early teenage years and were 22 years old when they married each other. They then moved to Tacoma, Washington, where they lived for a few months before returning to this state and buying their first home, in Hartford, where they had their first two children. After their first daughter was born, Ms. Young, who has a junior college degree in retailing, quit her job to stay at home and raise the children. In 1983 they sold the Hartford house and purchased land in North Branford, and then moved in with Ms. Young's parents in Stratford while Mr. Young finished building a home after it had been framed. While he did that work at night and on weekends, Ms. Young took care of the children. They moved into the North Branford home in 1984 and have remained there since.
After graduating in 1977 from the Connecticut School of Electronics, Mr. Young has worked all his adult life as a field service representative for a company that manufactures medical instruments. His job responsibilities entail installing and servicing the equipment, which he also trains customer staff customers to operate. His job involves some travel each year to various customer locations in his service area in the northeastern states. His current salary is $64,529 gross, along with approximately $10,000 per year in commissions and overtime. His net pay after the dissolution will be $1,000 per week.
In 1993 Ms. Young went back to work after attending community college, where she completed a two-year program training her as a medical secretary. She is now a certified medical administrative assistant, working 40 hours per week and earning $16.50 per hour. She earns $620 per week gross and $536 net. The court found credible her testimony that in this position she has probably reached her employment peak. The wife thus argues that she should receive lifetime alimony of $250 per week, as her husband's income is almost twice hers and hence he has greater earning capacity than she does. The husband, on the other hand, proposing alimony of $50 per week for only a year, urges the court to consider the fact that the wife has more education than he does.
The parties have agreed to share joint legal custody of Carolyn and for her to live primarily with her mother. They disagree, however, on whether Carolyn should continue to live in the North Branford home that has always been her home. Ms. Young testified that the dissolution had been difficult on their daughter and that Carolyn has been upset about the tension between her parents and worried about where she is going to live. Ms. Young said that, if the court adopted the husband's proposal to award him the marital home, she could not afford to obtain other housing in North Branford and that having to change schools would have a negative impact on Carolyn. Mr. Young testified, however, that he did not believe moving would have an adverse effect on Carolyn or that his wife would be unable to find a home in North Branford that she could afford. Mr. Young also argued that he should be awarded the marital home because he uses a portion of the basement as an office and keeps his tools and workshop there.
The Connecticut laws on alimony and property distribution require the court to consider many factors, which are set forth in General Statutes §§ 46b-51(a) and 46b-81. The alimony statute expressly permits the court's alimony decision to take into consideration the court's equitable distribution of property. Court decisions construing these statutes emphasize the responsibility of the trial court to consider all of the evidence, weigh all of the statutory factors, and then to place the weight on each factor that the court deems most fair and appropriate under the particular circumstances of each case. "While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case." Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). The court is not obligated to make express findings on each and "is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others." Graham v. Graham, 25 Conn.App. 41, 45, 592 A.2d 424 (1991). The weight to be placed on each factor depends on the circumstances of each case. Debowsky v. Debowsky, supra, 12 Conn.App. 526-27; Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). Moreover, the statutory factors for awarding alimony or assigning property are not exclusive, and the court may consider other equitable factors in either. Smith v. Smith, 249 Conn. 265, 284, CT Page 8480 752 A.2d 1023 (1999). Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982). Here the court has fully considered all of the statutory factors in light of the evidence offered at trial. As the court noted in Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989), the issues involving the financial orders "are entirely interwoven." The court's financial orders here on alimony, property distribution, and assignment of marital debt are meant to be a "carefully crafted mosaic, each element of which [is] dependent on the other." Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984).
In their testimony at trial, each party seemed to be urging the court to place strong emphasis in the financial awards on fault, a factor contained in both the alimony and property distribution statutes. Ms. Young testified that her husband had been physically violent and verbally abusive toward her on several occasions. She also said that she had tired of his flirtatious behavior with other women and a close relationship he has with one woman in particular, a business colleague named Mary Rose Baker, with whom Ms. Young suspected her husband was having an extramarital affair. Mr. Young admitted having a close relationship with Ms. Baker, whom he said he had known for many years and was a great comfort and support to him during the terminal illness of his mother. He admitted making four, five and six telephone calls daily to her, but insisted their relationship never became a romantic one before his wife filed the dissolution proceeding. He claimed that his wife was the violent one, has an uncontrollable temper, and attacked him on occasions. She stopped going to marriage counseling, he said, because she perceived the three counselors they saw as being on his side because they suggested she seek therapy for her depression. The evidence did not establish that fault by either party caused the breakdown of this marriage, however. Each party's account of the other's temper and abusive conduct and the reasons each one gave for not calling the police were plausible and sounded credible. Mr. Young's relationship with Ms. Baker does appear to be a close one, but no improprieties were proven.
The other reason Ms. Young gives for a disparate financial award seems to be that she has had to spend much of the inheritance she received from her mother on the children's college educations. The parties financed their oldest daughter's college education by diverting approximately $60,000 from Mr. Young's 401K account. At trial Mr. and Ms. Young disagreed substantially about how their second daughter's post-secondary expenses had been paid. Ms. Young claimed that she had paid for all of Laura's college expenses during her 18 months at Southern Connecticut State University and one year at Gateway Community College, while Mr. Young said that his wife had used money he earned to do so. There was insufficient basis in the evidence for the court to conclude whose account was more accurate. Although both parties agree that Ms. Young has been paying $1,800 per month for their third daughter, Diana, to attend Hofstra, they gave different explanations for why. According to Ms. Young, Mr. Young had refused to pay anything for college for Diana because he did not believe this daughter deserved the help he gave their oldest daughter. Ms. Young claims she has had to use funds that she inherited in 1993 from her mother to pay the $25,000 per year she had been paying for Hofstra. Mr. Young claimed that he has a good relationship with Diana, denied refusing to contribute toward her college expenses, and said that Ms. Young was using her money because of how the parties split the family's various expenses. He pointed out, moreover, that he recently paid one-half the cost of a car for Diana to use, a fact that Ms. Young acknowledged. The evidence thus shows that Ms. Young has been using her money to pay for Diana's college expenses, but both parties appeared credible in their explanations of why and there was no basis in the other evidence for the court to credit one party's version over the other's. The evidence does show, however, that while both parties have contributed toward their children's college educations, Ms. Young has used a greater percentage of her individual resources than Mr. Young has.
"There are three stages of analysis regarding the equitable distribution of each resource; first, whether the resource is property within Section 46b-81 to be equally distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties." Krafick v. Krafick, 234 Conn. 783, 792-93 (1995). The court finds that all items of property listed on each party's financial affidavit are property subject to distribution under § 46b-81. All property listed on each party's financial affidavit is marital property subject to equitable distribution and, except for the husband's ABX pension fund that will pay him $400 per month at retirement or as otherwise expressly stated in this decision, has the value stated thereon.
The court thus has insufficient data to assign a present value to the ABX pension. "In distributing the assets of the marital estate, the court is required by § 46b-81 to consider the estate of each of the parties. Implicit in this requirement is the need to consider the economic value of the parties' estates. The court need not, however, assign specific values to the parties' assets." Bornemann v. Bornemann, 245 Conn. 508, 539 A.2d 978 (1998). Not having introduced sufficient evidence as to the value of the pension, neither party may now complain that the court cannot do so either and will instead award interest in the pension on a percentage basis. "Both parties in a dissolution proceeding are required to itemize all of their assets in a financial affidavit and to provide the court with the approximate value of each asset. If the parties fail to do so, the equitable nature of the proceedings precludes them from later seeking to have the financial orders overturned on the basis that the court had before it too little information as to the value of the assets." (Citations omitted.) Id., 536-37.
Although each party has requested the lion's share of the marital estate, the court finds that a more nearly equal division of property is fair and equitable in this case. In weighing Mr. Young's desire to keep his tools and office in the basement against Ms. Young's wishes to keep Carolyn in the same home until after high school, along with all the other evidence, the court has concluded that it makes sense to allow Carolyn to stay in the home where she has always lived until she has graduated from high school. Contrary to the defendant's assertions, there was no credible evidence introduced that Ms. Young could find other housing she could afford in North Branford. After considering all of the evidence in light of the statutory factors, the court finds it fair, equitable and appropriate here to award Ms. Young alimony of $175 per week for fifteen years and title to and exclusive possession of the marital home but to award Mr. Young half interest in the present equity therein. The court will also award the wife half of the present value of husband's 401K account and his ABX pension. Ms. Young needs her husband's support now and for the foreseeable future. But when the parties reach retirement age and can begin collecting pensions and Social Security and receiving distributions from deferred compensation, the court's orders and their accumulated financial resources should be sufficient for each to meet its own needs then. Other property and debt orders found fair and equitable are contained in the orders below.
Each party also seeks an order that the other be required to pay for Diana's college tuition at Hofstra. No evidence was introduced about the specific cost of that tuition, only that Ms. Young has been paying $25,000 of the annual cost of $28,000 for Diana to attend school there. Under the statute governing orders on post-secondary educational expenses, General Statutes § 46b-56c(f), such an order
may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents.
The court construes the request of each party for an order to pay Hofstra tuition as constituting an "agreement" by each, within the meaning of § 46b-56c(f), that tuition in an amount greater than that charged for an in-state student by UCONN may be ordered here. Their testimony and the mutual request also show that the parties would have provided such support to Diana for her higher education had the family remained intact and the court so finds.
After considering relevant circumstances and the factors mandated by § 46b-56c(c), the court orders the parties to split any unpaid tuition costs for Diana to attend Hofstra this year and next so long as she continues to qualify for payments due under an educational support order pursuant to § 46b-56c(e). Each parent shall make such payments when due directly to the school. The parties neither waived nor explicitly requested any orders with regard to other expenses for Diana to attend Hofstra, such as room and board, but the court deems it prudent, in light of Robinson v. Robinson, 86 Conn.App. 719 (2004) (holding it error for trial court in dissolution proceeding not to inform parties with children under the age of 23 that no educational support order may be entered at a later date if the judgment does not include a provision permitting such a later order) and the parties' joint request that the court retain jurisdiction over post-secondary educational expenses for their youngest child, to do so also for such expenses other than tuition for Diana.
ORDERS
After considering all the statutory and regulatory criteria for dissolving a marriage and entering orders regarding custody, visitation, equitable distribution of property and division of debt, alimony, and child support, together with applicable case law and all the evidence and information presented by the parties presented here, the court hereby enters the following orders:
A. Dissolution of marriage
The marriage of the parties, having broken down irretrievably, is hereby dissolved.
B. Parenting Orders
a. The parties will share joint legal custody of their minor child, Carolyn, who will reside primarily with her mother. Mr. Young will have reasonable and liberal visitation.
b. Each party shall have reasonable access to Carolyn when she is with the other party, including free access by telephone, mail and e-mail. Carolyn shall be able to call either parent at any time.
c. Neither party shall disparage the other party in Carolyn's presence. The parents shall exert every reasonable effort to promote and foster feelings of love and affection between their minor daughter and the other parent. Each parent shall exert his and her best efforts to refrain from doing anything to estrange Carolyn from the other parent or to disparage Carolyn's opinion of his mother or father, or to act in such a way as to hamper the free and natural development of love and respect between Carolyn and the other parent.
d. If either parent plans any trip or vacation with Carolyn for longer than one day's duration, that party shall notify the other in writing at least 48 hours prior to their time of departure, indicating their itinerary and providing the other parent with the following information: the duration of the trip, lodging addresses and telephone number, airline flight number and travel information including means of travel, departure and arrival times and destinations.
e. Each party shall keep the other party informed of the general whereabouts of Carolyn when their minor daughter is with that parent.
f. Each party will keep the other apprised of their current address, telephone number, and, if a party has such, fax number and email address.
g. Both parents shall be entitled to complete copies of all records and documents from third parties and/or institutions concerning Carolyn's health, welfare, education and general well being, and each party shall immediately provide the other parent upon their receipt with copies of any and all such documents and records concerning their minor daughter.
h. If either parent has knowledge of any illness or accident or other circumstance seriously affecting Carolyn's health or welfare, that party shall promptly notify the other. Each party shall similarly notify the other of any change in Carolyn's medical status, including visitations to medical providers.
i. Each parent shall provide Carolyn's school with his or her contact information and request that the school issue duplicate notices of any and all teacher conferences or counseling sessions or meetings involving Carolyn so that both parents receive them and both parents shall have the right to attend such meetings.
j. Each of the parties shall have the right to attend school, extracurricular and public events in which Carolyn participates. Each parent shall inform the other of any such events as soon as they are scheduled.
k. Until Carolyn has graduated from high school, if either party intends to relocate his or her residence from the greater New Haven area, he or she shall give advance written notice by certified mail, to the other party, at least ninety (90) days prior to the date of relocation, indicating the place of relocation and the reason therefore. Nothing contained herein shall prevent either party from seeking a judicial determination that Carolyn shall not move until the issue of relocation has been resolved or a change in custody or principal residence by reason of the relocating party's move.
C. Financial Orders 1. Child Support
Mr. Young shall pay Ms. Young child support in the amount of $179 per week plus 53 per cent of qualifying child care expenses and unreimbursed medical expenses exceeding one hundred dollars per year until Carolyn turns age 18 or, if she is still in high school, until age 19 or her graduation from high school whichever comes first.
2. Health insurance CT Page 8486
Mr. Young shall continue to provide health insurance for the parties' children as long as it is available to him at reasonable cost through his employer. If health insurance for any of the parties' minor children is not available at a reasonable cost through his employment but is available to Ms. Young at a reasonable cost through her employer, she shall provide it. If health insurance for a minor child is not available to either parent at a reasonable cost through employment, they shall apply for any publicly-funded health insurance for which Carolyn may be eligible and split the cost of such insurance.3. Post-secondary educational support
a. The parties shall split equally any unpaid tuition costs for Diana to attend Hofstra this year and next. The court retains jurisdiction to enter an order regarding payment of other post-secondary educational expenses covered under General Statutes § 46b-56c for Diana upon motion or petition of either party.
b. The court retains jurisdiction to enter an order regarding post-secondary educational support regarding their minor child Carolyn upon motion or petition of either party.
4. Alimony
Mr. Young will pay alimony of $175 per week to Ms. Young for fifteen years. Alimony shall terminate upon death of either party or remarriage or cohabitation, as defined in the General Statutes and case law thereunder, of the wife.
5. Equitable distribution of property and debt
Each party is awarded the property, assets, and debt listed on its financial affidavit of February 4, 2005, except as set forth below.
a. The Marital Home
(1) The wife is awarded all right, title and interest in and to the marital home, subject to the following orders. She shall be responsible from all tax and insurance obligations on the marital home from the date of judgment. Until the husband is released from all financial liability for debt or taxes on the marital home incurred after the date of dissolution, the wife shall indemnify and hold him harmless thereon.
(2) Within 30 days of the date of dissolution, Mr. Young shall deliver to Ms. Young a quitclaim deed transferring to her all of his right, claim and interest in the property. Simultaneous with his delivery of the quitclaim deed, she shall deliver to him a mortgage note, secured by a mortgage deed on the property, in the amount of $175,000, plus 5 per cent simple annual interest. Said note shall be due and payable two years after the youngest minor child has graduated from high school or turned age 19, whichever occurs first. Upon her delivery to him of the sums due under this paragraph, he shall give to her a full release of the mortgage note and deed.
(3) Should Ms. Young not pay the sums due under the preceding paragraph by the end of the second year after the youngest child has turned 19 or graduated from high school, whichever occurs first, the house shall be, unless the parties agree otherwise in writing, sold and the amount due to Mr. Young under the previous paragraph paid to him from the net proceeds, after the costs of sale.
(4) The court retains jurisdiction over any sale and the distribution to Mr. Young of his interest in the marital home.
b. Deferred Compensation
(1) The wife is awarded fifty per cent of the value of the husband's 401K, valued on the date of dissolution.
(2) The wife is also awarded $200 per month from the husband's ABX pension fund, payable when she is first eligible to begin receiving payments as an alternative payee.
(3) The court retains jurisdiction to approve any qualified domestic relations orders necessary to effectuate these orders. The husband shall be responsible for preparing any QDRO, and the parties shall split the cost thereof.
(4) All other deferred compensation is awarded to the party listing such on its financial affidavit.
c. Other personal property
(1) The husband is awarded his tools and building supplies.
(2) The parties are each awarded their own clothing, jewelry and personal effects.
(3) Other personal property, including household goods and furnishings, shall be divided equally between the parties. If they cannot agree on an equal division, they shall seek the mediation services of Family Services. If they still cannot agree, each party shall submit a list to the court of the items of personal property that it wants and a brief summary of why the party believes it should be awarded that article of property. The court retains jurisdiction over distribution of personal property.
6. Division of debts and liabilities
Each party will be liable for the debts listed on its own financial affidavit and will indemnify and hold the other harmless thereon, except as otherwise stated herein.
7. Tax exemptions
The parties shall alternate the tax exemptions for their children.
8. Life Insurance
The husband shall maintain life insurance from his employer in the amount of $158,000, or any larger amount available at a reasonable cost through his employer, naming the wife as exclusive beneficiary for as long as he has an obligation to pay alimony or child support and shall provide the wife with proof by February first of each year that such insurance is in full force and effect.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT