Opinion
No. FA 03 0089312S
June 22, 2005
MEMORANDUM OF DECISION
I. PROCEDURAL HISTORY
This matter first came to court by summons and complaint dated December 26, 2002, and returnable January 21, 2003, in which complaint the plaintiff husband sought a dissolution of the marriage, joint legal custody of the minor children and an equitable division of the parties' personal property. Accompanying the complaint was a notice of or automatic orders.
On February 10, 2003, the defendant wife appeared though counsel, however, she did not file her answer and cross-complaint until December 28, 2004, two years subsequent to the commencement of this action. In her cross-complaint the defendant seeks alimony, sole custody of the two minor children, supervised visits only by the plaintiff, child support, a post-majority educational support order, a division of the personal property and counsel fees.
The attorney who filed the answer and cross-complaint on behalf of the defendant is the defendant's third attorney in this action and continued his representation through the trial.
During the pendency of this action, several relevant pendente lite orders were entered by the court. On February 5, 2003, the plaintiff was ordered by Family Support Magistrate McCarthy to pay to the defendant the sum of $189 per week for the support of the two children. In addition thereto, the defendant was ordered to pay $38 per week on an arrearage found to be $1,213 as of said date. The order was secured by an immediate wage execution and a health insurance order. On February 10, 2003, the court, (Pickard, J.) issued an order of joint custody relative to the minor children; the children were to continue to reside with the defendant. It was reported at that time that the plaintiff was visiting said children on a daily basis. On August 25, 2004, however, the court entered an emergency order, (Bozzuto, J.), that suspended all of the plaintiff's visits with the children, as a consequence of an overdose of prescription drugs taken by the plaintiff. Supervised visitation was allowed, but only with the defendant's permission. On September 13, 2004, the parties entered into a stipulated order (Pickard, J.), pursuant to which visits by the plaintiff with his children would be supervised by a named social worker or an appropriate person agreed to by counsel. A maximum of two visits a week were permitted, each to last no more than two hours. On November 15, 2004, the parties entered into an additional stipulated order (Bozzuto, J.), that named three alternative supervisors that the parties had agreed to.
Although the dissolution action was made returnable to this court, actions seeking child support for children who reside in New Milford, are returnable to the Danbury judicial district. Subsequent to the trial, this court requested and received a copy of the family support magistrate's child support order.
A limited contested trial was conducted by this court on April 14 and May 5, 2005. At the conclusion of the evidence and by agreement of the parties, the court entered a judgment dissolving the marriage of the parties and restored to the defendant her maiden name, Tricia M. DiNunzio. The court also ordered the plaintiff to complete the statutory parenting classes within ninety days, as the defendant had already completed said classes. In addition to hearing from each of the parties, the court heard testimony from Attorney Scott McCarthy, who currently represents the plaintiff relative to an ongoing workers' compensation matter. The court received into evidence seven exhibits, all of which were introduced by the plaintiff. Plaintiff's #1 is a list compiled by him of his employment and residences during the thirteen years that the parties remained together. Plaintiff's #2 and #9 are reports of two independent medical examinations performed by Dr. Henry Rubinstein, relative to the plaintiff's workers' compensation claim. Plaintiff's #3 was submitted by the assistant attorney general, who had appeared in this case, as the children, in the past, were participants in the state's HUSKY health insurance program. Plaintiff's #4 is a purchase order relative to a Taurus automobile in November 2001, which has resulted in a significant deficiency judgment. Plaintiff's #7 is a receipt from the New Milford tax collector relative to payments made by the plaintiff of outstanding automobile personal property taxes: Plaintiff's #8 is a statement for services rendered, submitted by the plaintiff's dissolution attorney.
On the first day of the trial the court asked counsel to submit an updated child support guidelines worksheet. On the second day of the trial, the parties submitted for the court's approval a Custody Agreement, dated May 5, 2005, a copy of which is attached hereto and made a part of this dissolution judgment. Said agreement, which was approved and signed by the court, continues the joint legal custody order, with the children's primary residence to be with the defendant. The plaintiff's visits are to be in a "therapeutic setting," as may be deemed appropriate by the children's therapist in consultation with the plaintiff's therapist. Naturally, the court will retain jurisdiction on the visitation issue. The parties are to cooperate and consult with each other on health and education issues concerning the children and each party is to promptly notify the other in the event that illness or accident befalls a child. Neither party is to engage in any conduct purposed to estrange a child from his parent. The court also ordered counsel to negotiate an agreement as to the amounts due and as to the manner of payment relative to the outstanding hospital and therapy bills. The court ordered counsel to submit a stipulation to the court on this matter within thirty days for inclusion in this judgment.
Having failed to do so, the court will hereafter address the issue.
Having heard the testimony and after consideration of all the evidence admitted at trial, and after reviewing the orders proposed by each of the parties in light of the evidence, the court makes the following findings.
II. FINDINGS OF FACT A. Basic Facts
The plaintiff and the defendant, whose maiden name, as noted, was Tricia DiNunzio, intermarried on May 21, 1989, in Danbury, Connecticut. The plaintiff has resided continuously in the state of Connecticut, for more than one year prior to the institution of these proceedings. The marriage of the parties has broken down irretrievably, and there is no reasonable prospect for reconciliation. The plaintiff and defendant have two minor children, who are issue of the marriage Charles F. Johnson, born October 21, 1991 and Samuel L. Johnson, born September 13, 1997. No other minor children have been born to be defendant wife since the date of the marriage Other than past participation in the HUSKY program, neither party nor the minor children have been recipients of aid from the state of Connecticut or from any other public agency. The court has jurisdiction over the parties and the marriage. At the trial, each of the parties presented proposed orders to the court, some of which were agreed to and stipulated by the parties. The court heard testimony on those issues upon which the parties could not agree.
B. As to the Plaintiff Husband CT Page 10560
The husband is currently thirty-five years of age. He was nineteen when he married his wife, and she was only sixteen years of age at the time, requiring the permission of her parents to enter into the marriage. The parties knew each other for only four months prior to the marriage. The husband had been a resident of this state for six months prior to meeting his future wife. The couple had met while Tricia and her father were working at a local Food Bag establishment. The parties resided with the wife's family both before and, on numerous occasions, after they were married. While residing in Florida during his adolescent years, the husband quit high school, however, he managed to complete his high school education after the parties married. While residing in the state of Florida with his mother, at age sixteen or seventeen, the husband set fire to an automobile, which resulted in his arrest and a charge of arson. That case was still pending in Florida when the parties married. He received a suspended sentence three weeks after the marriage with ten years probation, which he successfully completed.
The husband admits that his drinking coupled, with the parties' financial difficulties, resulted in numerous fights between his wife and him. He freely admits that he has been plagued by alcohol since he was age fifteen and that he is an alcoholic. He has been arrested for operating under the influence of alcohol in the past, that resulted in his successful completion of the Alcohol Education Program. He asserted that he stopped drinking six months after the second child was born, but only after he punched a wall in a fit of anger and broke his hand. He later admitted to a "couple" of relapses several years later. He has consistently refused to participate in Alcoholics Anonymous due to "issues with AA," when he was younger.
At that the time that he sustained the broken hand, his treating physician recommended that he see a psychiatrist, who placed the husband on Ritilan after a diagnosis of anxiety and Attention Deficit Disorder was made. At the time of the trial he was taking Lithium and Zoloft. He also takes a prescription for high blood pressure. In August 2004, while this matter was pending, he was hospitalized due to an overdose of his pain medications. He was admitted to Danbury Hospital and discharged to the Hallbrooke facility from which, after de-toxing, he was discharged after a confinement of fifteen days. During that time, a diagnosis of Bipolar Disorder was made. Three months later, shortly after Thanksgiving 2004, the husband ceased all of his medications, became suicidal and was again admitted to the hospital and discharged for another stay at Hallbrooke. In addition to the previous diagnoses, it was felt that he suffered a mild heart attack. The husband currently sees both a psychiatrist for medication and a therapist on a regular basis. He was ordered to produce his medical and hospital records prior to the commencement of the trial. Since he had not done so by the first day of the trial, this court ordered him to do so prior to the commencement of the trial's second day.
As noted, prior to the second day of the trial, the parties had reached an agreement on the custody/visitation issues, therefore, this court vacated said order.
On December 6, 2001, while working for a construction company, the husband fell eighteen feet off a scaffolding. As a result of his injuries, he has undergone two surgeries on his neck and has suffered back pain, that has resulted in a permanent partial disability of his cervical and lumbo-sacral spine. Since the date of the injury, the husband has not returned to any gainful employment, and, with the exception of one month, has been a recipient of workers' compensation benefits. The issue presented by the husband's entitlement to certain future benefits under the Workers' Compensation Act will be hereinafter addressed in detail.
As noted, the husband has been unemployed since his injury in December 2001. On his financial affidavit dated April 11, 2005, he reports gross and net income of $760 per week. He reports weekly expenses of $719 including $110 for food, $36 for day care and $53 for storage. He reports a weekly rental of $200 and provided a note on the affidavit indicating an anticipated increase to $400. On the first day of the trial, this court inquired as to the reason for that increase; the husband was unable to answer, however on redirect, conducted on the second day of the trial, twenty-two days later, he indicated he intends to get a larger apartment in order to accommodate anticipated visits by the children. He lists liabilities totaling $11,520, $9,720 of which are attorney fees. He pays nothing on those liabilities. His assets consist of a 1987 BMW which the husband values at $900 and $1,000 worth of furniture, apparently in storage. His major asset consists of anticipated, but unliquidated future workers' compensation benefits.
Plaintiff's #8 indicates an outstanding balance, as of May 3, 2005, in the amount of $19,949.44, that is due to Attorney Taylor for services rendered in the dissolution matter. At the top of the invoice is a note that anticipates payment from the proceeds of future workers' compensation benefits.
C. As to the Defendant Wife
The wife is currently thirty-one years of age. Although she left school after the tenth grade, she has been successfully employed for the past five years by a company that has a contract with the federal government, pursuant to which the wife assists federal government employees in moving from Connecticut to other places, and vice versa. Her previous employment was limited to, as she stated, a "stay-at-home mom." She also worked part-time at Grand Union and as a bookkeeper. The wife has been, with the exception of several out-of-state moves, a life-long resident of Connecticut. Although the wife suffers from high blood pressure, she testified that it is, currently, under control; she anticipated that she would be free from medication in the near future. She does see a mental health therapist as a consequence of her mother's passing and the marital problems. Notably, both children are currently receiving mental health therapy, to assist them in dealing with the traumatic consequences of the breakup of their parents' marriage. Charles, known as "Frankie," does have an asthmatic condition for which an inhaler is periodically required. Samuel, who is known as "Sammie" has been diagnosed with ADD and is receiving medication.
The wife testified that while the parties lived with the plaintiff's mother, for a short period of time, in Florida, the husband would stay out drinking overnight and, on one occasion, had sexual relations with the fiance of a friend. When he drank, according to the wife, he was "aggressive and verbally abusive." She testified that he was unfaithful to her on at least three occasions during the marriage, that is, three occasions of which she is aware.
As to her husband's injury, she testified that he did not begin to receive workers' compensation payments until one month after his accident. Due to the difficulty in getting those payments and the suffering that the husband went through as a result of the injuries, she testified that the family was under a lot of stress. The wife indicated that she provided daily care to her husband, immediately after he underwent the two surgical procedures and that she took days off from her employment to administer that care. She testified that her husband underwent a "long convalescence" from his surgeries and their residual. On her financial affidavit, which was amended as of May 5, 2005, the wife lists gross earnings of $670 per week and net earnings of $486 per week. Among the items deducted from her weekly paycheck are medical insurance premiums of $48 and a wage garnishment of $23. The wife lists expenses for her and the two children, that amount to $600 per week. They include $150 for rent, $115 for food for three and a weekly payment for medicine, doctors and therapists totaling $65. The wife and children are currently covered by the health insurance plan available through her employment. The wife indicates a payment of $20 per week for daycare, while, as noted, the husband claimed a daycare expense of $36 a week, however the court heard no evidence that he is contributing anything toward the daycare expense. The wife lists liabilities, that total, $31,553, $13,000 of which are fees due to her third and trial attorney. She lists a total balance due to her two previous attorneys of $5,000. The remainder of the debt is represented by marital bills which are still due for utilities and the auto loan for the Taurus, the latter amounting to $8,500. The only assets listed by the wife are a 2004 Saturn, with a negative value of $4,204 and $50 in the bank.
The court received no evidence as to whether the husband is currently a beneficiary of that plan. There was no request by the husband to order his post-dissolution participation therein via the federal COBRA legislation.
Although neither party provided any pension information in their respective financial affidavits, the husband may have some small pension due from the Carpenters Union and, although the wife's employer provides no pension, a 401(k) plan is available to which the wife has yet to make a contribution. Though her employment, the wife maintains a life insurance policy, the face amount of which is equal to three times her current annual salary of $34,000.
The core dispute between the parties and the marital issues upon which the parties have been unable to reach agreement, involves the amount, if any, of future workers' compensation benefits to which the defendant wife or, for that matter, the children, may be entitled and the discharge of the outstanding marital debt. Attorneys fees amounting to nearly $40,000, jointly incurred as a result of this action, are of major concern the targeted source of payment is the plaintiff's unliquidated workers' compensation claim! These issues are left for the court to resolve.
D. The Marital History
During the thirteen years that the parties resided together, there were numerous moves from one residence to another and several moves from one state to another. During the time that the parties were together, they resided in Florida, Minnesota and Texas and Connecticut. The parties changed their marital residence on at least thirteen occasions, and separated from each other on four of those occasions. The longest separation prior to the final one in October 2002, lasted sixteen months, when, in 1994, the plaintiff took a job in Texas and left his wife and two children. Even though he returned within four months, he was not allowed into the home of the defendant's parents, where she and the children had taken up residence. The evidence revealed that during the marriage, the parties resided with members of the defendant's biological family (most of the time with the wife's parents and siblings), on eight separate occasions and with the husband's mother on two occasions, at the beginning of the marriage in Florida and toward the end of the marriage in Connecticut. The various stays with relatives lasted from months to in excess of a year.
During a four- to six-month separation in 1993, the defendant obtained a restraining order and commenced a dissolution action against the plaintiff. The action was subsequently withdrawn when the parties reconciled.
Some of the numerous moves were prompted by the plaintiff's loss of employment; he has held six different jobs in five different states. Other moves were prompted by the defendant's desire to live with her biological family and the plaintiff's statements that he no longer desired to be married to the defendant. In 2000, while the parties and the children were residing with the defendant's father and her siblings, the plaintiff left the residence on three occasions, each time for a period of three to four weeks. In any event, the many changes of residences and changes in the plaintiff's employment, as evidenced by Plaintiff's Exhibit #1 and confirmed through the testimony of both parties, did not bode well for financial or familial stability and was the source of much friction and marital distress.
As noted, the final separation took place in October 2002, however, it was occasioned by the defendant's, well-founded suspicion in July 2002, that the plaintiff was having an extramarital affair with a mother, whose child attended day care with Sammie. The defendant now refers to that person as his fiance; he presented her with an engagement ring in March 2003, barely in excess of one month from the time he commenced this dissolution proceeding. He admitted that he resided with his fiance in a Danbury hotel for four or five months prior to moving in with a friend in December 2004. On August 5, 2004, while residing with his fiance, the plaintiff left what the defendant referred to as a "slurred suicide threat" on her work telephone at 5:30 AM. The plaintiff's physical and mental condition resulted in his first mental health admission. Prior thereto, during the pendency of this action, the plaintiff had physical custody of the children every other weekend and, during the week, visited them often. According to the defendant, the plaintiff was "a good dad" and took care of the children during the times that he was out of work.
E. The Workers' Compensation Claim 1. Factual Issues
As noted, the plaintiff sustained an injury to his neck and low back on December 6, 2001, as a result of a fall, while he was employed by Island Acoustics, whose workers' compensation insurer is Continental Casualty. The neck injury necessitated a discectomy and fusion via a graft in February 2002, and a revision fourteen months thereafter, that involved the insertion of hardware into the plaintiff's neck.
At the time of the trial, the plaintiff was receiving temporary partial benefits pursuant to General Statutes Sec. 31-308(a). Independent medical examinations conducted by Dr. Rubinstein resulted in a finding by the orthopedic physician that the plaintiff had reached maximum medical improvement and, in his opinion, that the plaintiff has a 20% permanent partial disability of the cervical spine and a 7% permanent partial disability of his back, disabilities that Rubinstein relates to the plaintiff's fall from the scaffolding. Rubinstein opined that the plaintiff can perform "light duty" work, finding it "highly unlikely" that he can return to manual labor, without restriction. In Rubinstein's opinion, the plaintiff should not lift more than twenty pounds. Plaintiff's Exhibit #2. The orthopedic physician recommends that the plaintiff avoid prolonged sitting and is limited to minimal bending, adding that vocational retraining would be helpful to the plaintiff. Plaintiff's Exhibit #9.
2. Applicable Law
Sub-section (a) of General Statutes Sec. 31-308 provides for benefits, in terms of weeks of compensation, for specific injuries that are listed in subsection (b) therein. Applying those statutory provisions to Rubinstein's assessment of the plaintiff's disabilities, the plaintiff would be entitled to 23.4 weeks (20% of the 117 weeks) for his cervical spine and 26.8 weeks (7% of 374 weeks) for his back. According to Attorney McCarthy, the plaintiff's rate of compensation for the specific injuries is approximately $560 per week. Thus, using Rubinstein's figures, the plaintiff would be entitled to 49.22 weeks or $27,764.80 as compensation for his permanent disability, pursuant to this section of the Workers' Compensation Act. Also, pursuant to said Act, the specific compensation is usually paid on a weekly basis, unless the workers' compensation commissioner, upon the claimant's request, agrees to a discounted lump sum payment.
General Statutes Sec. 31-308a provides for discretionary additional benefits for a partial permanent disability sustained by a covered worker. This statute provides for certain benefits after the payment of the specific injury benefit is made. Thus, the covered employee could receive 75% of the difference between the earnings he or she would be receiving from the same job held at time of the injury, up to certain limits, and the earnings currently received by the claimant. The commissioner makes the determination based on several factors provided in this statute. The duration of this additional weekly benefit, if awarded, cannot exceed that number of weeks for which the specific compensation was paid. Therefore, whether the plaintiff will be entitled to the benefits provided in this statute and, if so, the amount and duration thereof, is uncertain, dependent on several variables, and, at this juncture, highly speculative.
Sec. 31-308a. Additional benefits for partial permanent disability.
(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five percent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee; the availability of work for persons with such physical condition and at the employee's age, but not more than one hundred percent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee's permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.
(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.
A workers' compensation case is susceptible to a full and final settlement by a so-called stipulation, but only with the approval of the workers' compensation commissioner. According to Attorney McCarthy, whether a claimant and the compensation carrier pursue a stipulation depends on many factors, such as the claimant's age and health, his ability to obtain health insurance coverage and the carrier's assessment as to its risk of future exposure to further medical and wage loss payments. Obviously, if the carrier does not make an offer to "stip" the case, there will be no full and final settlement.
At the time of trial, there had been no agreement as to the amount of the specific compensation, although Attorney McCarthy testified that he would "soon" pursue that benefit on behalf of his client. Any expectation of the receipt of 31-308a benefits or any expectation of even thinking about a stipulation was premature and extremely speculative in nature.
3. As a Marital Asset
Our appellate court has held that the specific indemnity award provided in Sec. 31-308(a) and the benefits provided in Sec. 31-308a, after the specific award is paid, are, pursuant to General Statutes Sec. 46b-81, part of the marital estate and are, therefore, assignable to either party. Tyc v. Tyc, CT Page 10567 40 Conn.App. 562, 567, cert. den., 237 Conn. 916 (1996). On remand, the trial court (Shortell, J.), found that due to the unliquidated, uncertain and speculative nature of the husband's potential 31-308a claim, the court was unable to place a dollar value on said claim. Nevertheless, in light of the appellate court's ruling, the trial court assigned to the wife a forty percent (40%) share in the potential award. Tyc v. Tyc, 1997 Ct. Sup. 13091, Jud. Dist. Hartford/New Britain (December 12, 1997).
Sec. 46b-81. (Formerly Sec. 46-51). Assignment of property and transfer of title.
(a) 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 the husband or wife all or any part of the estate of the other. 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 the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
(b) 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.
(c) 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-51, 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.
F. The Marital Debt
Other than the $40,000 that the parties owe to their attorneys, relative to this dissolution action, there are outstanding obligations arising out of the marital relationship that are due to several utility companies, a former landlord and a car loan deficiency of $8,658.13 due to Household Finance, relative to the purchase of a 1998 Ford Taurus in November 2001. As noted, the court ordered counsel to negotiate an agreement, as to the outstanding hospital and therapy bills, which they were unable to do.
Concerning the Taurus, Plaintiff's Exhibit #4 is the purchase order relative to that vehicle. The first name on said order is that of Laura Mae Haefner, who is the plaintiff's mother; she also signed the purchase order. A 1986 Ford pickup was traded in, resulting in a net allowance of $569.43. There was a cash deposit of $1,000. The sum of $11,319.13 was financed via 60 monthly payments of $293.31. Notably, included in the amount financed, was a service contract for which the sum of $1,100 was paid. The testimony confirmed that the registered owner of the vehicle was Laura Mae Haefner, but that the Taurus was used as a family car, during the time that the parties resided with the plaintiff's mother in Connecticut.
The defendant testified that she continued to make the car payments after October 2002, when the parties separated, however, she later contacted her mother-in-law, before the registration was due for renewal and asked her to allow the vehicle to be registered in the defendant's name. The mother-in-law refused the request, as she wanted her name removed from the loan obligation. According to the defendant, the plaintiff's mother suggested that the defendant operate the vehicle while unregistered. The defendant was unwilling to do so, and subsequently notified the registered owner that she would leave the vehicle in a church lot, whereupon the plaintiff's mother "hung-up" on her daughter-in-law. The plaintiff, however, took possession of the car and drove the vehicle for several months, however, he made no payments on the loan obligation and paid no car taxes. His mother left Connecticut, and once again took up residence in the state of Florida. The vehicle was repossessed in July 2004. Subsequently, the deficiency judgment was entered against the plaintiff's mother and the defendant, as cosigner.
Once the plaintiff took possession of the Taurus and chose to operate said vehicle, all he needed to do was to make monthly payments and to pay the minimum cost in order to maintain the vehicle. The result of his failures in this regard is an oppressively high deficiency judgment against his mother and his wife.
Additional marital debt consists of the plaintiff's ATT cell phone bill ($1,327); a propane bill ($43 due since July 2002); the electric bill ($434 as of November 2002) and a cable TV bill ($478). The plaintiff, who remained in the marital apartment for a month after the defendant vacated the apartment, on October 29, 2002, stipulated to a judgment in the amount of $1,500 that is due to the landlord and agreed to pay said sum. He has paid nothing toward said judgment. The plaintiff seeks some contribution from the defendant toward $1,157.06 that he paid to the New Milford tax collector for automobile personal property taxes. Plaintiff's Exhibit #7.
The parties were in possession of two cable boxes as of October 2002. The defendant returned one of them, however, the plaintiff retained the other. This court ordered the plaintiff to retrieve the box from storage, return it to the cable company and pay to the company the amount due.
III. THE DISSOLUTION STATUTES
In reaching its decision as to the issues in dispute, the court has considered each of the factors provided in General Statutes Sec. 46b-81 and 46b-82. The court has also reviewed the current child support and arrearage guidelines and the provisions contained in Sec. 46b-84 regarding the obligation of the parents to maintain the two minor children according to their respective abilities and to provide health insurance coverage for said children.
Sec. 46b-82. (Formerly Sec. 46-52). Alimony.
(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 therefor 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 hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, 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 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.
(b) Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of alimony.
IV. DISSOLUTION
As noted, at the conclusion of the evidence, the court entered a decree dissolving the marriage of the parties and found that the marriage had broken down irretrievably with no reasonable prospect of reconciliation. Therefore, as of May 5, 2005, the parties were single and unmarried.
V. ORDERS CUSTODY AND VISITATION
As also noted, on May 5, 2005, the court approved the Custody Agreement, a copy of which is attached hereto, that provided, inter alia, for physical custody of the two minor children with the defendant wife and therapeutic visits by the plaintiff husband. The husband shall take prescribed medications only. The husband shall not drink alcohol or ingest non-prescribed medications during or twelve hours prior to any visits with the children. In the event that the parties are unable to agree on any issue affecting the health, education or welfare of the children, the wife shall have final decision-making authority.
CHILD SUPPORT
In accordance with the Connecticut child support guidelines, the husband is ordered to pay to the wife the sum of $190 per week for the support of the two minor children. This obligation shall be secured by an immediate wage withholding. He is ordered to execute the appropriate advisement form, if a new form is required by the support enforcement division. By agreement of the parties, the wife shall be responsible for 62% of any child care expenses, while the husband shall be responsible for the remaining 38%.
TAX EXEMPTIONS
The husband shall be entitled to claim Charles and the wife shall be entitled to claim Samuel as exemptions for state and federal income tax purposes.
CHILDREN'S HEALTH INSURANCE
The wife shall continue to provide medical insurance for the benefit of the minor children as available through her employment at reasonable cost to her. In the event that said insurance is no longer available to the wife, the husband shall provide the same, if available at reasonable cost through his employment. If neither party is able to obtain said insurance, the parties shall cooperate to obtain medical coverage for the children via the HUSKY program or any similar program that may be in effect at the time. The wife shall pay 62% of all unreimbursed health-related expenses, including dental, orthodontic (including braces), optical, prescriptive, psychiatric, and the like, after she has met the annual $100 expense for child. The husband shall be responsible for the remaining 38% of said expenses. Included in said expenses and this order, is the cost of the children's ongoing therapy. The husband shall pay to the wife his share of any unreimbursed medical/dental expenses within fifteen days of receipt of proof of payment by the wife. The provisions of Section 46b-84(e) are incorporated into this order
POST-EDUCATIONAL SUPPORT ORDER
Pursuant to the parties' agreement, the court will retain jurisdiction to enter a post-majority educational support order for each of the children, as provided by General Statutes Sec. 46b-56c. Either party, therefore, may, at the appropriate time, petition the court to enter such order.
LIFE INSURANCE
The parties shall each name the children as irrevocable beneficiaries of any and all life insurance policies that might be available to them, either through their employment or as a benefit through a labor union, until such time as the youngest child graduates from a four-year undergraduate program or attains the age of twenty-three, whichever first occurs.
ALIMONY
The husband shall pay to the wife, the sum of $25 per week as periodic alimony, which shall be nonmodifiable as to duration and amount for a period of three years from the date of this judgment. Thereafter, the husband shall pay to the wife the sum of $1 per year as periodic alimony, which shall be modifiable as to amount. The later obligation will expire ten years from the date of this judgment and shall be nonmodifiable as to duration. The initial periodic alimony order shall be secured by an immediate wage withholding order; the husband is ordered to sign the necessary advisement form.
WORKERS' COMPENSATION BENEFITS
At the time that the weekly payment of the specific compensation pursuant to Sec. 31-308 commences, it is anticipated that the husband will lose the cost-of-living allowance that he currently receives from the temporary partial benefits being paid. It is also anticipated that a reduction in the amount of the weekly benefit received by him, may result in his filing of a motion to modify the child support order in accordance with the guidelines.
So long as the benefits received by the husband, pursuant to Sec. 308 or 308a are paid weekly, such constitutes a consistent source of income from which the child support order is paid. Any lump-sum payment of benefits, however, would negate that consistent source. Therefore, so long as the benefits being paid to the husband pursuant to the Workers' Compensation Act are paid on a weekly basis, the wife shall not be entitled to any portion thereof. In the event, however, that the husband requests and receives any payment of workers' compensation benefits, via a lump sum, from whatever statutory source those benefits may derive, the wife shall be paid Thirty-five percent (35%) of the net proceeds thereof. Net proceeds shall mean, that sum that remains after deduction is made for the payment of attorneys fees, as approved by the commissioner, for services rendered relative to the workers' compensation case; any costs to which said attorney is entitled and any medical bills, the payment of which is anticipated to be made from the gross proceeds. Attorneys fees that are due from either party relative to this dissolution proceeding shall not be considered in the calculation of the net proceeds of any lump-sum payment of benefits, whether they constitute a full and final stipulation or otherwise. The husband shall provide a copy of this portion of the judgment to Attorney McCarthy and shall authorize his workers' compensation attorney to provide any and all information to the wife and/or her attorney as to the nature and amount of the benefits received by the husband pursuant to the Workers' Compensation Act.
MARITAL DEBT
As to the deficiency judgment on the Ford Taurus, the husband is ordered to be solely responsible for the payment thereof. He shall indemnify the wife and save her harmless from any and all sums due to Household Finance arising out of the purchase and ownership of said vehicle.
The husband shall be solely responsible for and shall indemnify and save the wife harmless from all sums presently due to New Milford Hospital, except for the sum of $60 that shall be paid by the wife. As noted the parties shall share responsibility for the payment of any and all of the children's therapy expenses, past and future, as follows: 62% to be paid by the wife and 38% to be paid by the husband.
The husband is ordered to be solely responsible for the ATT cell phone bill and the cable-TV bill; he shall indemnify the wife and save her harmless from any claims relative to those obligations.
Each party shall be responsible for the payment of fifty percent (50%) of the propane and electric bills. The husband shall be solely responsible for the payment of the amount due to the landlord, pursuant to the judgment to which he stipulated. The court will not order the wife to reimburse the husband for any portion of the automobile personal property taxes that he paid to the town of New Milford.
PERSONAL PROPERTY
Apparently, the parties had divided the marital personal property, long before the commencement of the trial, however, the wife sought payment from the husband of the value of her rings and a diamond bracelet or the return of said jewelry. The husband asserted that he had no knowledge as to the whereabouts of those items and that they were in the wife's jewelry box when last seen by him, before the wife vacated the last marital residence. The evidence on this issue was insufficient for this court to hold the husband accountable.
PENSION
As noted, neither party provided the court with any specific information relative to his or her entitlement to a pension through their respective employments. Any sums to which the husband may be entitled from the carpenters' union or to which the wife may be entitled through her current employment, would be of minimal amount. Therefore, each party shall be entitled to retain 100% of his or her pension benefits, whatever the value thereof may be.
ATTORNEYS FEES
The husband shall pay to the wife's attorney, the sum of $3000, as an allowance to defend, which shall be paid out of the net proceeds of any lump-sum benefit received by him (after the wife receives her 35% share), pursuant to the Workers' Compensation Act. This obligation shall take first priority over any obligation that the husband has to his attorney that may arise out of this dissolution proceeding.
In the event that the husband has not paid said allowance in full by one year from the date of this judgment, he shall pay the sum of $25 per week to the wife's attorney until said allowance is paid in full. Should the husband thereafter receive any lump-sum payment pursuant to the Workers' Compensation Act, he shall pay, from the net proceeds thereof, any balance then remaining. The husband shall provide a copy of this portion of the judgment to Attorney McCarthy.
BY THE COURT,
Wilson J. Trombley, Judge
CUSTODY AGREEMENT
20.1 The HUSBAND and WIFE shall have joint legal custody of the minor children. The WIFE'S residence shall be considered the primary residence of the children. If there is a dispute about an issue concerning the children, the WIFE shall be entitled to final decision-making authority. The HUSBAND shall have reasonable visitation with the children in a therapeutic setting, as deemed appropriate by the children's therapist in conjunction with the Husband's therapist.
20.2 The parties shall mutually cooperate and consult with one another in an effort to make the appropriate joint decisions regarding the health and education of their children.
20.3 If either has knowledge of a significant illness or accident or other circumstances seriously affecting the health or welfare of said children, the HUSBAND or the WIFE, as the case may be, will promptly notify the other.
20.4 All information as to medical, educational, theological, psychological and social issues as to the minor children shall be freely accessible to both parties.
20.6 Neither party shall do anything which may estrange said children from the other party or injure the opinion of said children as to her mother or father, or act in such a way as to hamper the free and natural development of said children's love and respect for the other party.
Charles Johnson
Tricia Johnson