Opinion
No. FA-09-4008879S
December 7, 2009
RULINGS ON MOTIONS-PENDENTE LITE Motion for Relief from Automatic Orders #102, Motion for Alimony #103, Motion for Child Support #108
This action for dissolution of marriage was filed by the plaintiff-husband on May 8, 2009. On June 9, 2009, the defendant-wife filed a motion for alimony, pendente lite. The wife also filed a motion for contribution to medical expenses dated June 9, 2009 and a motion for custody dated June 9, 2009. On June 8, 2009, the husband filed a motion for relief from the automatic orders. The matter appeared on the short calendar on June 23, 2009. On June 23, 2009, a special assignment was given to the pending motions set for August 5, 2009. In the interim, the husband's counsel filed a motion for child support dated July 20, 2009.
A hearing on the pendente lite motions was held on August 5, 2009. Both parties testified and exhibits were entered by both sides. The hearing was limited to the motion for relief from automatic orders, #102, the motion for alimony, pendente lite, #103, and the motion for child support, pendente lite, #108. The court requested that counsel submit written final arguments, simultaneously. Final arguments were received by the court on August 17, 2009 and the record closed.
FINDINGS OF FACTS
The plaintiff, Edward McGann, married the defendant, Lisa M. McGann, on May 5, 1991. They have a daughter, Kali, who was born on January 27, 1993.
The parties are separated. The husband left the marital home in February 2007 and the wife vacated the marital home in August 2007. The marital home was sold, resulting in approximately $45,000 in net proceeds. The net proceeds were used to pay marital debts. The husband received $5,000, and the wife received $35,000.
After the sale of the marital home, the wife resided in an apartment for almost one and one-half years. Presently, she lives in Danielson, and she does not pay rent. Her landlord is in the process of finishing a basement apartment for her, and it is anticipated that it will be completed at the end of September 2009. Thereafter, she will occupy the apartment, and she will pay $600 per month in rent. She will also have to perform 5 hours of weekly chores for her landlord.
Their daughter lived with the wife from February 2007 until October 2008. The wife asked the husband to take their daughter. Their daughter has resided with her father since October 2007. At the time, the daughter was having issues at school. The wife has access/visitation with their daughter every other week-end and as their daughter wishes.
The husband completed high school by earning a GED diploma. The wife graduated from high school and also obtained education/certifications in culinary arts and in massage therapy. In June of 2009, the wife graduated from school where she was trained as a medical assistant.
The husband is employed as a detective sergeant for the University of Connecticut police department and has been so employed for 14 years. Previously, he worked at Long Lane School in Middletown. He is eligible for retirement next year. He earns a salary for a 40-hour work week and has also had overtime earnings.
The husband has some health problems. Three years ago, he suffered a heart attack and had angioplasty surgery. He has high blood pressure and high cholesterol. He is overweight. He was recently prescribed Xanax for his anxiety.
The wife testified that she does not currently have any health issues that would prevent her from working on a full-time basis. She is employed at a physician's office as a medical assistant. As of the date of the hearing, she was working a 32-hour week at $14 per hour. She testified that she expected that her hours would increase to 38 hours the week after the hearing. She is offered benefits through her current employment. The court's orders are based on her working 38 hours per week.
In addition to her employment at the doctor's office, the wife testified that she does "odd jobs" for which she is paid cash. These jobs include house cleaning and window washing. Since May of 2009, she has worked 4 such odd jobs, earning $200 at one, $100 at another, $200 at another, and $80 at another. This additional income is not reported on her financial affidavit. The court includes this income in its orders.
At the time that the parties physically separated in February of 2007, the wife remained in the marital home with their daughter, and the husband went to live with a friend. The husband testified that the financial arrangement from February 2007 until July 2007 involved the husband's full paycheck being deposited into the parties' joint checking account. From this account, the wife paid the expenses of the household, and the wife gave the husband $100 every two weeks for his personal expenses. Then, in July 2007, the arrangement changed in that the husband took possession of his paycheck and started to direct deposit the sum of $1,500 every two weeks into the wife's account. The husband continued to pay the wife the sum of $1,500 every two weeks up until the end of May/early June 2009. The bi-weekly payments were made voluntarily and were not the subject of any court order. The plaintiff testified that he made these payments to his wife (even after he assumed custody of Kali) because he believed they had an agreement that she would not seek alimony from him.
The wife paid off some marital debts, including a debt owed to her mother. She deposited $35,000 into her checking account. She then moved to an apartment in Woodstock. Kali's primary residence stayed with the mother during this transition. The parties agreed that the wife would retain the proceeds of the sale of the residence to assist with her tuition expenses for her medical assistant degree.
Both parties testified that Kali has a number of significant issues. She treats with a psychologist and a psychiatrist. The father pays out-of-pocket for their daughter's counseling services, as they are not covered by insurance. Kali is on a number of medications. At times, she does not take her medications and requires supervision to ensure that she is med-compliant. Recently, Kali terminated her relationship with her therapist. Father testified he is seeking a new therapist for Kali.
The parties agreed in October of 2008 that it would be better for Kali to move to the father's residence. Father testified that he exerts firm authority over Kali and is perhaps more effective at controlling Kali's behavior than the mother. Father also testified that Kali's relationship with the mother is strained. Mother testified that she has recently been seeing Kali on alternating weekends, but there have been stretches of time when the contact has been more sporadic. Mother testified that she is not currently seeking to change the present custodial arrangement.
The evidence demonstrates that the plaintiff-father has assumed the primary role of parenting the parties' troubled teenage daughter. She needs guidance through her mental issues, and she needs parental oversight to ensure she is taking her medication and attending her counseling. These responsibilities have been almost entirely assumed by the plaintiff.
Mother testified that she has not paid any child support for Kali since Kali moved to father's residence in October of 2008. Father testified that he pays 100% of Kali's expenses currently, including all of Kali's unreimbursed medical expenses.
The plaintiff currently resides in a rented house in Pomfret Center, Connecticut. He shares the home with Kali and his girlfriend, Sherry. The expenses of the home are divided equally between the plaintiff and his girlfriend. His financial affidavit shows his one-half of the expenses.
The plaintiff testified that the condition of the home is unhealthy. The house is infested with mice. There is significant mold growth due to repeated basement flooding. The mold is causing health issues with coughing spells and breathing problems for the occupants. He cannot open the windows due to a year-round furnace which burns on the adjoining property causing smoke and soot to fill the air. He has contacted his landlord to address the issues, but no remedy is forthcoming.
The plaintiff testified that he would like to purchase a home within Kali's school district. He does not have a down payment to purchase a home. Therefore, he would either finance 100% of the transaction or his girlfriend would make the down payment. He is not seeking to make the defendant financially liable for any aspect of this purchase and testified that he would sign any form to relieve her of any liability.
The defendant testified that she does not object to the plaintiff's request to purchase a home so long as it does not affect her ability to receive alimony from the plaintiff. She seeks $300 per week in alimony, pendente lite, from the plaintiff. In addition, the defendant requests a deviation from the child support guidelines, but she could not offer a reason for a deviation.
Additional facts will be discussed, as necessary.
DISCUSSION A. Motion #102, Plaintiff's Motion for Relief from Automatic Orders
The evidence presented by the plaintiff establishes that the dwelling where the plaintiff currently resides with his daughter and girlfriend is in a deplorable condition. The residence does not provide a healthy environment for him and their minor daughter. The plaintiff has sought help from the landlord to address the health issues, but the landlord has done nothing to remedy the issues with the house.
The plaintiff seeks permission from the court to purchase a residence for him and their daughter. The plaintiff testified that the dwelling will be located within the child's existing school district. In addition, the plaintiff testified that if he is allowed to purchase a home, his monthly living expenses would remain at approximately the same as what he is currently paying. The plaintiff testified that he would hold the defendant harmless from the financial obligations resulting from the purchase of the home.
The plaintiff requests relief of the automatic orders and permit him to purchase a home. However, he failed to provide evidence regarding the cost of the home and the loan required to finance the purchase of the home. There was no testimony regarding the rental of another dwelling within the daughter's school district or attempts to locate a suitable apartment during the pendency of this action. The proposed purchase in all likelihood would affect the ability of the husband to pay alimony, pendente lite.
B. Motion #103, Defendant's Motion for Alimony, pendente lite
The purpose of alimony is to provide continuing support, whereas the purpose of a property division is to equitably distribute the marital property to each spouse. Smith v. Smith, 249 Conn. 265, 275 (1999). In making an order for support pendente lite, the court must consider all factors enumerated in General Statutes § 46b-82, except the grounds in the complaint or the cross-complaint to be considered with respect to a permanent award of alimony.
In reading General Statutes § 46b-83, together with § 46b-82, the "factors" the court shall consider are: ". . . [T]he length of the marriage, (intentionally omitting the causes of the dissolution) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties, (intentionally omitting the award per § 46b-81) and, in the case of a parent to whom custody of the minor children has been awarded, the desirability of such parent's securing employment." The plaintiff asserts that these statutory criteria read on the whole militate against any alimony award to the wife, pendente lite.
The parties have been married for 18 years. He works as a police officer, and she a medical assistant. In the past, the wife has worked as a vegetarian chef and as a nanny. She holds a massage therapy certification and a culinary degree.
The plaintiff concedes that historically overtime earnings have been available to him. However, the plaintiff testified that recently overtime has been less available. Other than the evening prior to the August 5, 2009 hearing, the plaintiff testified he had not worked overtime for about one and one-half months. The paystubs that were marked as exhibits bear this out. He testified that his ability to take overtime hours has been hampered by two factors at work: first, he is no longer driving the president of the university as he did previously; and second, he is working the day shift which means the overtime during daytime is not available to him. The court concludes that the husband is not guaranteed overtime, but it is more likely that he will have overtime pay than the wife.
"There is no absolute right to alimony. Awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court." (Citations omitted.) Weinstein v. Weinstein, 18 Conn.App. 622, 637 (1989). In order for the court to award alimony to the defendant, there must first be any inquiry as to her need for support. The question is whether or not the wife has presented evidence to demonstrate that her income is not sufficient to meet her needs. If it is determined that the wife has a need for alimony, the court must then look to the husband's circumstances to determine if he has the ability to meet the wife's needs. Papa v. Papa, 55 Conn.App. 47 (1999).
The court must base its alimony order on the parties' net income. Cleary v. Cleary, 103 Conn.App. 798, 801-04 (2007); Ludgin v. McGowan, 64 Conn.App. 355 (2001). The plaintiff's net income is $1,121. (Ex. 5.)
The defendant testified that her gross income is $532 per week as of the week following the hearing. Since May 2009, she had earned $580 performing "odd jobs," resulting in an average gross additional income over a 10-week period of $58 per week for a total gross weekly income of $590. After deducting $24.17 for federal income taxes, $36.58 for social security, $8.56 for Medicare and $4.38 for Connecticut income taxes, the defendant's net income is $516.
The evidence establishes that there is a substantial disparity between the plaintiff's and the defendant's net weekly income. There is a difference of $604 in net income between the plaintiff and the defendant.
C. Motion #108, Plaintiff's Motion for Child Support, pendente lite
The parties, by agreement, share custody of their minor daughter, and she resides in the primary care of the father. The mother has access/visitation on alternating weekends. Mother is not currently seeking any change to the custodial arrangement. Both parents work and earn income.
Counsel have presented to the court child support guidelines prepared pursuant to the regulations. The guidelines are not correct because, based on the evidence presented, the plaintiff's gross weekly wages are $1,713, and the defendant's gross weekly wages are $590.
The wife seeks a deviation from the guidelines. When asked on cross-examination what her reason for seeking a deviation, the wife did not provide a reason. The plaintiff asserts that there is no present compelling reason for the defendant to avoid support of the child. The evidence does not establish a reason to deviate from the guidelines. The plaintiff seeks a child support order consistent with the guidelines, and an order for contribution to the child's unreimbursed medical expenses in accordance with the guideline calculations.
ORDERS A. Motion #102, Plaintiff's Motion for Relief from Automatic Orders
The plaintiff's motion for relief from automatic orders is denied because the plaintiff failed to provide the court the particulars regarding his purchase of real estate that could affect his ability to pay the defendant, alimony, pendente lite.
B. Motion #103, Defendant's Motion for Alimony, pendente lite
The defendant's motion for alimony, pendente lite is granted. The plaintiff is ordered to pay the defendant $302 per week as alimony, pendente lite, commencing on August 5, 2009.
C. Motion #108, Plaintiff's Motion for Child Support, pendente lite
The plaintiff's motion for child support pendente lite, is granted. The defendant is ordered to pay the plaintiff $82 per week as child support, pendente lite, commencing August 5, 2009 in accordance with the child support guidelines (attached to this opinion). The defendant is ordered to reimburse the plaintiff 23% of all unreimbursed medical expenses in accordance with the child support guidelines, including counseling and mental health treatment, commencing August 5, 2009.
Editor's Note: The referenced attachment is not included with the reported opinion.
By agreement of the parties, the plaintiff and the defendant are awarded joint custody of the minor child, primary residence being with the father, and reasonable rights of access/visitation to the mother; specifically, every other week-end, and as the parties may agree to additional access.
IT IS SO ORDERED,