Opinion
FBTFA144048534
03-11-2016
Daryl Armstrong v. Lucinda Berry Armstrong
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Gerard I. Adelman, J.
This dissolution of marriage action had a somewhat confusing start. The writ, summons and complaint filed by the plaintiff was originally dated in November 2013, but was apparently never acted upon until the following fall. The original dates were crossed out and new dates inserted. The court file indicates that the case was filed with the court on November 3, 2014 after the defendant had been served on October 24, 2014. The defendant filed a cross complaint shortly thereafter (#103.00). After a series of motions and interim orders, the court held a trial on Wednesday February 17, 2016. The plaintiff was self-represented and the defendant was represented by counsel. Upon the suggestion of the court, the plaintiff orally amended his complaint at the start of trial to allege irretrievable breakdown as the cause of the marital failure in lieu of his original claims. The defendant consented to the amendment and both parties waived any further pleadings or statutory stays.
The file was confused further by the fact that the plaintiff had requested and received a Waiver of Fees in December 2013 (#101.00), but did not pursue the matter for another year.
General Statutes 46b-51(a)(2) provides in relevant part: " In any action for dissolution of marriage . . . the court shall make a finding that a marriage breakdown has occurred where . . . both parties are physically present in court and stipulate that their marriage has broken down irretrievably and have submitted an agreement concerning the custody, care, education, visitation, maintenance or support of their children, if any, and concerning alimony and the disposition of property. The testimony of either party in support of that conclusion shall be sufficient."
BACKGROUND
The parties were married for fifteen years, and have one minor child. For most of the marriage, the plaintiff was employed by United Parcel Service (UPS) as a driver in the Bronx, where he earned some $80,000 gross annually. In 2013, the plaintiff quit his employment with UPS, claiming that he did that he did so in order to spend more time at home with his family. He found that working in the Bronx severely limited the amount of time he could be home on days that he worked. He additionally claimed that his wife was having an affair and that he found messages on his wife's phone from other men. The defendant denies the allegations of adultery and further alleges that she had no advanced notice that her husband was going to quit his job.
After leaving UPS, the plaintiff withdrew his UPS 401k funds to start a construction business with his brother and to support the family in the interim while the new business was being established. He purchased a house in North Carolina to renovate and sell at what he anticipated would be a significant profit. The plaintiff withdrew approximately $56,000 from that 401k and received $49,513.20 net from that withdrawal. (Defendant's exhibit " B" and Plaintiff's exhibit #6.) According to a September 7, 2015 notice that the plaintiff received from the Internal Revenue Service (IRS), he owes an additional $11,619.31 in taxes, interest, and penalties for the tax year 2013 as of the notice dated September 7, 2015. (Plaintiff's exhibit #4.) Once again, the defendant alleges that she had no knowledge that the plaintiff had made this withdrawal until after it was done.
The plaintiff's UPS 401k statement issued on December 31, 2012, indicates a balance of $56,189.71, with an outstanding loan balance of $1,015.34 (Defendant's exhibit " B").
Both parties agree that the plaintiff spent about five (5) months in North Carolina working on the project. Despite the anticipated profit, the plaintiff's renovation project was unsuccessful. Then, unfortunately, upon his return to Connecticut there was a domestic violence incident on November 21, 2013, and the plaintiff was removed from the marital home as result of a criminal protective order based on a charge of disorderly conduct. According to the plaintiff, the matter was resolved with a pretrial diversionary program.
It was immediately after this incident that the plaintiff completed the dissolution of marriage complaint that he did not actually serve or file until the next year.
See State v. Armstrong, Superior Court, judicial district of Fairfield, Docket No. CR-13-0275604 (August 28, 2014) (disposing of action).
Since leaving UPS and after the failure of the North Carolina project, the plaintiff has not been very successful in maintaining significant employment. Currently, he is employed as a shuttle driver for Yale University. He is earning $13.73 per hour and working approximately 34 hours per week. (Defendant's exhibits " C" and " D" .) At best, this job will provide the plaintiff with a gross annual income of a little more than $24,000.
The plaintiff's financial affidavit indicates a gross weekly income from employment at $360.00, but when presented with his pay stubs during his testimony he admitted that was actually his net income (#125.00).
The defendant was employed as a registered nurse for most of the marriage. She is currently working two jobs to support herself and the child; as a school nurse in the Bridgeport school system, and as a psychiatric nurse for the state of Connecticut. She earns just under $1,000 week gross from each of her two jobs, and with her average overtime her financial affidavit reports a total gross weekly income of $2,239.20 (#126.00).
The parties had owned a home located at 413 Westfield Avenue in Bridgeport, Connecticut, and when the mortgage on that home fell into arrears, the parties were able to convey title to a new owner through a bank-approved short sale in August 2014. At that time they moved to an apartment. In October 2014, the defendant bought a home of her own located at 67 Lenox Avenue in Bridgeport, Connecticut. That property and the corresponding mortgage obligation is in the defendant's name only.
In this action, the plaintiff is seeking alimony from the defendant. He also wants her to give him an equal interest in her current home claiming that it was purchased during the marriage. Some of the additional claims made by the plaintiff seek an order for the defendant to share equally in the taxes owed on his premature 401k withdrawal, and his rent and utility bills for his housing covering the period of time he was expelled from the marital home under the criminal protective order.
The defendant is asking for child support, and for the court to order an updated arrearage amount on support and unreimbursed medical and/or dental expenses for the minor child. Additionally, she is asking the court to order the plaintiff to pay her for personal property she insists he sold, gave away or abandoned. Finally, she asks that the plaintiff pay one-half of a loan she took out from a relative to help pay against the mortgage arrearage.
The defendant also requests restoration of her name. General Statutes § 46b-63(a) provides: " At the time of entering a decree dissolving a marriage, the court, upon request of either spouse, shall restore the birth name or former name of such spouse."
As a final issue before the court, despite the fact that a final parenting plan was entered back in March 2015 (#112.00), both parties are asking for adjustments to that plan.
DISCUSSION
The key to resolving the issues in this matter is by determining what exactly happened to this couple in 2013 and 2014. Why did the plaintiff quit his long-term and profitable employment with UPS? Why did the plaintiff go to North Carolina for five months? Why did the parties fail to pay the bills, especially the mortgage, during this time period?
As in almost all dissolution of marriage matters, the credibility of the parties is at the heart of the case. " It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses . . . It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore . . . equipped . . . to assess the circumstances surrounding the dissolution action." (Emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010).
The plaintiff's version of events is quite difficult to understand in light of the events. While one can understand his frustration with a long work day followed by a commute from the Bronx back to Bridgeport and its heavy toll on his family life, it is very difficult to understand why he would then leave his family for some five months to work in North Carolina. Were there no houses to renovate in this area? His actions and the stated reasons for those actions just do not make for a credible story. The defendant contends that the marriage failed when the plaintiff went to North Carolina. She claims she had no prior knowledge that he was going to quit his very well paying job or that he was planning to withdraw his retirement savings. It would appear more likely that his attempt to relocate to North Carolina just did not work, and he therefore returned to Bridgeport.
Likewise, it is difficult to understand how an individual with a long and apparently successful career with UPS was unable to find similar work once he did return to this state. The plaintiff argued that his pending criminal charges was a deterrent to employment and that is likely to have been true, but that matter was resolved and cleared from his record in late August 2015, some five plus months before the trial.
Clearly the plaintiff is bitter over the events that have occurred since he quit his UPS job. His domestic violence arrest was a terrible occurrence which drastically altered the circumstances for this family. The untimely delays in the court proceedings regarding the plaintiff's motion to modify the support was also a complicating factor. However, his efforts to seek to have the defendant to contribute to the plaintiff's living expenses while he was out of the house on a criminal protective order is simply unsupportable. The evidence suggests that this was a marriage that ended long before the plaintiff left UPS. The testimony of the two parties was so completely opposite of one another as to suggest they lived two separate lives even while living together. The court must nonetheless determine what, if any, awards are warranted.
The record reflects that the defendant filed for and received four (4) continuances after the plaintiff filed his motion to modify the support (#118.00, 119.00, #121.00 and #122.00). There were additional problems, including hearings at which only one party was present and there was some confusion about why that occurred.
A. Alimony and Property Distribution
General Statutes § 46b-81(c), concerning the factors that the court must take into account in dividing property, provides: " 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."
General Statutes § 46b-82(a), regarding alimony, provides in relevant part: " 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 . . ."
Because the trial court is in the best position to determine appropriate awards, " [a] fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria." (Internal quotation marks omitted.) Kaczynski v. Kaczynski, 124 Conn.App. 204, 209, 3 A.3d 1034 (2010). " It is well settled that [i]n dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in General Statutes § § 46b-81 (division of marital property), [and] 46b-82 (alimony) . . ." (Internal quotation marks omitted.) Id., 210. The court is not required to give each enumerated factor equal weight, or make express findings as to each factor, so long as it considers the relevant criteria. E.g., Id., 211 (alimony); Coleman v. Coleman, 151 Conn.App. 613, 617, 95 A.3d 569 (2014) (property division).
Regarding alimony, it is questionable if the plaintiff is working to his potential. E.g., Olson v. Mohammadu, 310 Conn. 665, 679 n.10, 81 A.3d 215 (2013) (explaining that a parent's motivation in accepting a lower income is key in determining support payments); Lynch v. Lynch, 153 Conn.App. 208, 236-37, 100 A.3d 968 (2014), cert. denied, 315 Conn. 923, 108 A.3d 1124 (2015) (change in income in itself does not warrant a lesser award, but the court instead must examine the facts surrounding the change). While it appears that he has the capacity to earn more in the future, currently, the defendant is presently earning far more than the plaintiff. See Lowe v. Lowe, 47 Conn.App. 354, 359, 704 A.2d 236 (1997) (court should consider current finances in fashioning award). Given this disparity, an award for short period of time to improve his financial situation is warranted. Mongillo v. Mongillo, 69 Conn.App. 472, 479, 794 A.2d 1054, cert. denied, 806 A.2d 1065, 261 Conn. 928 (2002) (time-limited alimony appropriate to allow former spouse to obtain training or otherwise become self-sufficient).
Concerning the distribution of property, as mentioned, the plaintiff primarily seeks interest in the defendant's home, purchased in October 2014, and additionally argues that the defendant should share in other costs. The defendant seeks compensation for personal property that the plaintiff allegedly sold, gave away, or abandoned, and like the plaintiff, requests reimbursement for certain payments. The burden was on the parties to make a sufficient showing, and none of these claims were proven to the court by a preponderance of the evidence. Therefore the court takes no action on claims for reimbursement. See, e.g., deFur v. deFur, 37 Conn.App. 450, 452, 656 A.2d 703 (1995) (court cannot make order without specific factual finding); Mensah v. Mensah, 145 Conn.App. 644, 653, 75 A.3d 92 (2013) (documentary evidence probative, and generally necessary, for financial claims); Alexander v. Vernon, Superior Court, judicial district of Tolland, Docket No. X07-CV-02-0078935-S, (May 3, 2004, Sferrazza, J.) (dispute cannot be resolved if remains in the " shadows of speculation.").
On the subject of the defendant's home, the matter is a little more complicated. The evidence proved that the home was purchased on October 17, 2014 (Defendant's Exhibit " I"). The defendant was served with the dissolution of marriage writ, summons and complaint on October 24, 2014 (see Return of Service issued by State Marshal N.E. Nikola) so that the purchase was made during the marriage, but prior to the service of the complaint on the defendant. As such the purchase was not made in violation of the Automatic Orders. Practice Book § 25-5 reads in pertinent part as follows: " The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage or civil union, legal separation, or annulment, or of an application for custody or visitation." (Emphasis added.)
Being property purchased during the marriage, the potential division of the Lenox Avenue property is certainly properly before the court. As discussed briefly above, General Statues § 46b-81 provides guidance to the court in determining the division of the marital estate. The defendant's purchase was made after the failure of the relationship and only days before she was actually served formally as detailed above. The uncontroverted testimony of the defendant was that she borrowed the down payment of $5,000 from her mother and the balance of the purchase price was satisfied by a mortgage note in her name alone. There is no evidence that there is any equity in the property at this time. There is no evidence that the plaintiff contributed to the acquisition of the property or to its upkeep. His claim that he should share in its value is completely unsupported and has no merit.
B. Child Support and Arrearage
A parent has a duty to support his minor child. Rostad v. Hirsch, 148 Conn.App. 441, 464 n.9, 85 A.3d 1212 (2014), appeal dismissed, 317 Conn. 290, 116 A.3d 307 (2015). General Statutes § 46b-84(d) provides: " In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child."
While the case has been pending there was a pendente lite support order entered by agreement of the parties on March 19, 2015 (#113.00). The plaintiff was ordered to pay child support in the amount of $107.00 per week in accordance with the Child Support Guidelines. There was also a finding of an arrearage in the amount of $1,513 and additional payment against said arrearage of $20 per week. Accordingly the total weekly payment by the plaintiff including the current support and the arrearage was $127.00 weekly. At that time the plaintiff was represented by counsel, and the parties added language into the agreement allowing them to return to court on April 30, 2015, to address any corrections to the support and arrearage amounts after they had exchanged additional documents to contest the terms of the agreement. Neither party asked for a correction, nor did either party elect to appear on April 30th. This agreement therefore became a binding contract. Barber v. Barber, 114 Conn.App. 164, 168, 968 A.2d 981, cert. denied, 292 Conn. 915, 973 A.2d 661 (2009); see also General Statutes § 46b-66(a) (if court finds agreement to be fair and equitable, it may incorporate into an order or decree).
General Statutes § 46b-83(a) provides for child support payments during the pendency of a dissolution action.
The guidelines are official regulations established by the Commission for Child Support Guidelines pursuant to General Statutes § 46b-215a and approved by the legislative regulation review committee pursuant to General Statutes § 46b-215c. See Regs., Conn. State Agencies § 46b-215a-1 et seq.
There is no record of an appearance in the court file to document that the plaintiff had legal representation at that time, but the agreement is signed by counsel for the plaintiff, and an attorney did appear in court on his behalf. The plaintiff did file an appearance for himself on July 15, 2015 and then again on September 3, 2015. That latter appearance was in lieu of his counsel.
At the trial, the plaintiff blamed his attorney for his lack of diligence, and eventually the plaintiff, now representing himself, filed a motion to modify the support in July 2015 (#114.89), alleging that he was out of work due to an injury. That motion was not heard for a variety of reasons, including discovery requests and several continuance requests by the defendant. Despite the fact that much of the delay was not caused by the plaintiff, the court cannot change this contract absent a hearing on modification. E.g., Id., Budrawich v. Budrawich, 115 A.3d 39, 156 Conn.App. 628, cert. denied, 317 Conn. 921, 118 A.3d 63 (2015). At this final hearing and in consideration of the evidence before the court, a more current determination of the appropriate child support pursuant to the Child Support Guidelines is proper. Given the plaintiff's decrease in income as well as the date of his current income, a new determination of the arrearage is required.
The court, having considered the evidence presented during the trial, including the testimony of the parties, their demeanor while on the stand and the items entered as full exhibits during the trial in light of the statutory criteria as explained by our case law, makes the following findings of fact:
A. The court has jurisdiction over this matter; B. All statutory stays have expired; C. The allegations of the complaint have been proven; D. The marriage has broken down irretrievably and there is no reasonable hope of reconciliation; E. There is one child issue of the marriage to wit: Darah born February 17, 2002; F. Neither party nor the child has been the recipient of any state or municipal assistance during the marriage; G. Neither party is more responsible for the breakdown of the marriage than is the other; H. Had the parties remained an intact family, they would have made their best efforts to support their daughter in her post-majority educational efforts; I. The plaintiff is in his early forties and in reasonably good health; J. His current employment is significantly less than his prior work history would suggest he could earn; K. The defendant is approximately 42 years of age and in good health; L. The defendant currently works two jobs, both as a registered nurse; M. She works well beyond the 45-hour limit which the Child Support Guidelines consider; N. The defendant provides the medical and dental coverage for the minor child; O. The plaintiff withdrew his 401k funds, and received $49,513.20; P. The defendant purchased a home on Lenox Avenue, and has pending mortgage payments; Q. The court ordered child support as of March 15, 2015 was $107.00 and the arrearage was found to be $1,513 as of July 24, 2015; R. Since July 24, 2015 the plaintiff has paid only $200 to the defendant; S. From July 24, 2015, until February 12, 2016 is 28 weeks; T. The presumptive child support as calculated by the defendant and not opposed by the plaintiff is $89.00 per week; U. The court's calculation of the presumptive child support based on the evidence at trial is $80.00 per week; and V. The plaintiff's current employment commenced on October 24, 2015 and he received unemployment compensation from August 8, 2015 until his current employment commenced.
Accordingly, and in consideration of the findings enumerated above, the court hereby
ORDERS:
I. The marriage of the parties is dissolved;
II. The parties shall share joint legal custody of their minor child and her principal residence shall be with the defendant mother;
III. The parenting plan adopted by the court on March 19, 2015, shall be the final parenting plan and shall be fully incorporated herein as if fully set forth herein;
A. With the exception that the plaintiff shall pick up the child from school on Friday afternoons or the child shall take the bus to the plaintiff's home and he shall return the child to school the following morning;
B. If at anytime the school pickup and return is unworkable due to school not being in session, the plaintiff shall return the minor child to the defendant's home but shall remain curbside for all such exchanges;
IV. The plaintiff shall pay as child support to the defendant the sum of $80 per week;
A. Said order shall be retroactive to the filing date of the plaintiff's motion to modify July 24, 2015;
B. The plaintiff owes an arrearage to the defendant for unpaid child support in the amount of $3,513.00 as of the week ending March 12, 2016 as follows:
1. The balance of the arrearage from the prior finding is $1,153.00;
2. $80 times 32 weeks (July 31, 2015 through March 12, 2016 is $2,560.00;
3. Minus the $200 paid to date (February 17, 2016) by the plaintiff;
C. Said arrearage shall be paid at the rate of $27.00 weekly;
D. The full weekly payment of support ($80) plus arrearage ($17) is $107.00;
E. Said payment shall be secured by an immediate wage withholding order;
V. The plaintiff may claim the minor child for income tax filing purposes, both federal and state, in all even years so long as he is current with his child support and no arrearage exists as of December 31st of each such year;
A. The defendant shall claim the minor child for income tax filing purposes, both federal and state, in all odd years;
B. The defendant shall claim the minor child for income tax filing purposes, both federal and state, in any even year in which a child support arrearage has been found by the court to exist on or before January 30th of the following calendar year;
C. By example, if the court finds that an arrearage exists for the calendar year 2016 on January 30th of 2017, then the defendant shall have the right to claim the minor child for tax filing purposes;
D. The defendant shall continue to provide medical and dental insurance for the benefit of the minor child so long as it is available to her through employment at reasonable cost;
E. The plaintiff shall contribute to the defendant 25% of all unreimbursed or uncovered medical and/or dental costs for the benefit of the minor child;
F. The defendant shall provide the plaintiff with all appropriate documentation to support her request for reimbursement at least quarterly;
1. Said documentation shall include copies of receipts, Explanation of Benefits (EOB) or billing statements and a calculation of the plaintiff's 25% liability;
2. The plaintiff shall reimburse the defendant promptly but in no more than sixty (60) days;
G. The provisions of General Statutes § 46b-84(e) shall apply to this matter;
VI. The plaintiff shall contribute 25% of all reasonably necessary childcare expenses used to allow the defendant to be employed at her current positions or their successor positions;
A. The defendant shall provide documentation for her expenses, if any, at least once per month;
B. The plaintiff shall reimburse the defendant monthly for such expenses no more than ten (10) days after he receives the defendant's documented request for reimbursement;
VII. The court shall retain jurisdiction for post-majority educational orders pursuant to General Statutes § 46b-56c;
VIII. The defendant shall pay to the plaintiff as periodic alimony the sum of $100 per week;
A. Said alimony shall terminate upon the plaintiff's remarriage, the death of either party or fifty-two (52) weeks from the date of the first payment;
B. Said alimony shall be subject to the provisions of General Statutes § 46b-86(b);
C. The term of said alimony is not modifiable beyond the fifty-two (52) weeks;
D. Said alimony shall be taxable income to the plaintiff and tax deductible to the defendant;
E. During the duration of the alimony obligation, the plaintiff may net the two payments by paying to the defendant his child support obligation in the net sum of $7.00 per week;
IX. The defendant shall own the real property at 67 Lenox Avenue, Bridgeport, Connecticut, free and clear of any claim by the plaintiff and she shall be solely liable for any expenses stemming from the ownership and/or possession of said property;
X. The plaintiff shall own the real property located in North Carolina free and clear of any claim by the defendant and he shall be solely liable for any expenses stemming from the ownership and/or possession of said property;
XI. Each party shall be solely responsible for their own debts as set forth on their respective financial affidavits and shall hold harmless and indemnify the other party from any liability therefrom;
XII. Each party shall own free of any claim by the other party any personal property, bank accounts, and motor vehicles now in their possession;
XIII. The plaintiff shall transfer to the defendant by a Qualified Domestic Relations Order (QDRO) one-half (1/2) of his UPS pension;
A. The parties shall share equally the cost of the preparation of said QDRO;
B. The court shall retain jurisdiction over this provision until said QDRO is approved and accepted by the plan administrator of the plaintiff's pension plan;
XIV. Each party shall retain any other deferred income or retirement accounts they may currently possess;
XV. Each party shall pay their own legal fees and/or costs associated with this matter; and
XVI. The defendant shall be restored to her birth name of Berry.