Opinion
No. FA03 0081761S
June 9, 2004
MEMORANDUM OF DECISION
The second trial of this case commenced on May 11th and ended May 12th, 2004 after a mistrial was ordered on April 31st, 2004 (Upson, J.).
The parties were married on August 4, 1979, approximately 25 years ago, and they are the parents of two children, Robyn Brower and Derek Brower, twins born on September 22, 1985. They have now reached their majority. They are completing their freshman year of college this June. They intend to remain in college until they graduate three years from now.
Both parties have resided in this State throughout their marriage. The plaintiff (wife) personally served the defendant (husband), therefore, the Court has personal jurisdiction of this marriage. Neither of them have ever received public assistance from this State. The wife alleged the marriage has broken down irretrievably. The wife is 50 years of age and the husband is 56 years of age and both of them are in good health.
The wife admitted the husband worked full time through the marriage and deposited all of his earnings in a joint marital account. The husband admitted the wife was an excellent homemaker, taking care of all his and the children's needs. She did not seek full-time employment throughout the marriage.
The wife testified that the husband was at fault because he admitted having an extramarital affair about two years before she filed for a divorce. He moved out of the marital home in October 2002. She believed their marriage was normal, even though they had no sexual relationship for about ten years. They both admitted their inability to communicate with each other.
The Court finds both parties contributed to the marital breakdown and both were at fault. The marriage ceased to be a normal one for the past ten years. Therefore, the marriage is dissolved on the ground of irretrievable breakdown pursuant to § 46b-40(c)(1) of the Connecticut General Statutes.
In April 2004, the wife filed with the Court two financial affidavits. The first, dated April 4th, listed the cash value of her assets at $135,374, and on April 27th, they were listed as $501,072.
The third financial affidavit dated May 11, 2004 filed by the wife, listed her gross weekly income from two mortgage notes of $939 per week and rental income of $413. She also listed a gross weekly salary of $60 per week she earned by working as a part-time bookkeeper for this family's real estate business. Her net weekly income is listed at $1,116. She listed her weekly deductions at $1,264, and weekly credit card debt and liabilities at $263. The total cash value of her assets are shown to be worth $1,190,333.
The husband has worked throughout the marriage as an engineer and presently' earns a net weekly income of $965 with expenses of $458. The value of his cash assets is $324,973. The Court finds the income, expenses and total assets listed by both of the parties on their financial affidavits filed at trial were correct.
The Court has applied the net income and the total value of marital assets of the parties in finding the facts and orders hereinafter stated. Greco v. Greco, 82 Conn. App. 768 (2004).
The parties do not agree on the division of the plaintiff's one-third (1/3) interest in three commercial properties located at 576-88 and 952-72 Boston Post Road in Milford, Connecticut and at 240 Boston Post Road in Orange, Connecticut. They also disagree on the division of the marital residence at 111 Rogers Road in Orange, Connecticut, owned jointly by the parties.
The criteria for the division of marital assets in a dissolution action are found in § 46b-81(a) of the Connecticut General Statutes, which provides in pertinent part:
[A] trial court may assign to either the husband or wife all or any part of the estate of the other . . . In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.
Krafick v. Krafick, 234 Conn. 783, 792 (1995) (emphasis underlined).
The court is also required to value the real estate and other marital assets at current market value at the time of dissolution. Rolla v. Rolla, 48 Conn. App. 732, 748 (1998). It also must consider the non-monetary contributions made by the wife as a mother and homemaker in dividing the marital assets. O'Neill v. O'Neill, 13 Conn. App. 300, 311 (1988).
REAL PROPERTY
I. The wife has an equal one-third interest with her mother and brother in the three parcels of real estate, two at 582 and 962 on the Boston Post Road in Milford, Connecticut, and a third parcel at 240 Boston Post Road in Orange, Connecticut.
The parties also own the marital home at 111 Rogers Road in Orange, Connecticut in joint names.
The Court has considered the testimony of both the parties, the plaintiff's expert witnesses, the many exhibits entered into evidence, the case law and all the criteria in Sec. 46b-81(c) C.G.S. The Court finds the following facts to be credible and probative and hereafter enters the following orders:
1. The wife inherited from her father's estate in 1964 a one-third interest with her mother and brother in the three commercial properties some 14 years before the marriage.
2. The husband admitted contributing nothing relative to the acquisition or preservation of these properties except mowing the lawn a few times over the course of this marriage for which he was paid.
3. The husband admitted he had no interest in these three properties and all of the income the wife received over the course of the marriage belonged to her. The wife received the interest income of her two mortgage notes on the Milford properties when they sold them in 2000 and 2001, and the rental income received from a Duchess Restaurant at 240 Boston Post Road in Orange, Connecticut. The husband admitted having no interest in any of these assets.
4. The husband admitted he paid none of the expenses to maintain these three properties, and he did not participate in any of the negotiations on the two mortgage notes on the Milford properties nor on the lease on the Orange property to the Duchess Restaurant.
The two mortgage amortization schedules in evidence indicate the monthly payments are $3,776 per month on the $450,000 mortgage and, for the $1,250,000 mortgage are $8,333 per month with balloon payments of $301,884 on January 1, 2016 and $1,258,334 on September 10, 2016, respectively, not including rental income on the 240 Orange property from Duchess Restaurants. The present values on the two mortgage notes are $176,739 and $714,512 from which she is entitled to one-third of these values.
The husband failed to prove by a preponderance of the evidence the appreciation of the Milford properties nor the Orange properties from the date of the marriage in August 1979 (acquired by the wife in 1964) to their present market values. The husband entered the field cards from the Milford Assessor's Office dated January 20, 1975, revised on July 13, 1981, in attempting to prove the market value at that time. The defendant did not offer any expert testimony as to the present market value of any of the two Milford properties. As to the Orange property, the wife conceded an appraisal dated November 22, 2002 prepared by Eric Glidden concluded the fair market value to be $2.5 million. The husband urged the Court to accept this appraisal as to the value of this property. However, the husband failed to prove by a preponderance of the evidence the appreciation of these three properties as of the date of trial.
For these reasons, the wife shall retain all of her interests in these three properties.
II. As to the marital residence at 111 Rogers Road in Orange, Connecticut.
The parties stipulated that the present market value is $345,000.
The wife requested the husband transfer to her his one-half interest for $66,500 as set forth in her proposed orders. Presumably, she would refinance the mortgage and home equity loan and requested 30 days to refinance.
The husband requested in his proposed orders that the residence be sold and, after deducting all the expenses of the sale, including all credit card debts, the net balance would be divided equally between the parties.
The Court finds both parties contributed equally to payment of the loans and the maintenance expenses from the date of purchase in 1987. The Court finds the husband's net equity for his one-half interest in the marital home to be $123,250 as shown on the wife's financial affidavit.
The Court orders the wife to pay the husband $123,250 within sixty (60) days. The wife will indemnify and hold the husband harmless on said loans.
III. As to the real estate in Cavendish, Vermont
The husband purchased the unimproved real estate prior to the marriage. This real estate has been sold and the husband is holding $39,500, the proceeds of this sale, in escrow. In her proposed orders, the wife agreed the entire proceeds of $39,500 belong to the husband and the Court so orders.
PENSION AND RETIREMENT ACCOUNTS
In her proposed orders, the wife has agreed the husband should retain all his interests in his retirement plans and 401k, listed on his financial affidavit to be worth $143,073, free and clear of any claim of the plaintiff or their two children, and the Court so orders.
The Court also finds the wife has no pension or retirement accounts and her only income will be from the two mortgage notes on the Milford properties and the rental income from the Orange property.
ALIMONY
The parties are waiving any claim for alimony. The Court finds they are both in good health and have sufficient income to support themselves, therefore, the Court accepts their waiver as fair and equitable.
COLLEGE EXPENSES
The parties shall equally share the children's college expenses beginning in the fall of 2005 when the children expect to begin their junior year, pursuant to Sec. 46b-56c C.G.S.
The wife is holding about $30,000 in trustee accounts for each child for their college education. The Court finds these funds were set aside during the marriage for their college education and should be sufficient to cover all their college expenses for their sophomore year.
HEALTH INSURANCE
The husband shall continue to provide health insurance, prescription coverage and dental coverage, as available through his employer, for the children, currently available until the children turn the age of 23. In the event that such health, prescription or dental insurance and coverages are no longer available, then the defendant shall provide alternate health, dental and prescription insurance/coverages, if available at the same or no additional cost. In the event that such health, dental and prescription insurance/coverages is not available at the same or no additional cost, and health insurance or the other coverages are available to the wife through her employer, then the wife shall provide such coverage and pay the cost for said insurance.
The wife may apply for COBRA benefits at her own cost and expense.
LIFE INSURANCE CT Page 9458
The husband shall maintain the life insurance currently available through his employer for the benefit of the children until this college obligation ceases. In the event that the husband changes his employment, he shall apply to obtain replacement coverage for the currently existing policy, if available at the same or at no additional cost.
DEBTS
The following joint marital debts (Discover Card ($9,510), Bank One Card ($14,195), and the American Express card ($13,500) and the AMEX card ($2,586)) shall be paid equally by the parties. Each party shall be responsible for any other debts as listed on their respective financial affidavits and shall indemnify and hold the other harmless with respect to same.
The wife shall be solely liable for the personal loans to her mother, Anna Schuchmann, including the $28,000 balance due on the loans for the children's tuition at Hamden Hall. And the husband shall be solely liable for the loan to Art Grochel as shown on his financial affidavit.
PERSONAL PROPERTY
The parties shall each retain the personal property currently in their possession, except that the husband shall receive the following items of personal property from the marital residence: piano, tools in the garage, lawn equipment and tractor, garden tools, bike, power tools in basement, office desk in basement, family room couch, stereo and speakers, family bookcase in hallway, projector, screen, camera and slides, freezer in basement, tennis equipment, ball machine, and camera lens.
The Court shall retain jurisdiction until this personal property is divided in accordance with this order.
BANK ACCOUNTS AND VEHICLES
The parties shall retain their own bank accounts and motor vehicles as shown on their financial affidavits.
ADDITIONAL ASSETS
The parties shall divide equally the insurance proceeds in the approximate amount of $7,000 received for water damages to the marital residence.
The husband shall be entitled to any proceeds from his personal injury claim arising out of an automobile accident case known as Brower v. Mills. This accident occurred after the parties were separated.
TAX CONSIDERATIONS
The parties shall hereinafter file separate tax returns and the wife shall be entitled to claim both of the minor children as exemptions on her 2004 income tax returns. Thereafter, each will take one child as an exemption as permitted under the tax laws.
ATTORNEYS FEES
The wife shall pay the husband $10,000 toward the legal fees incurred by the husband due to her materially false and misleading sworn financial affidavits filed with the Court dated April 5th and April 27th, 2004 listing her total assets at $135,374 and $501,072.
In the case of Billington v. Billington, 220 Conn. 212 (1991), our law was stated as follows:
Our cases have uniformly emphasized the need for full and frank disclosure in that affidavit. "A court is entitled to rely upon the truth and accuracy of sworn statements required by . . . the [Connecticut] Practice Book, and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding." . . . The filing of an inaccurate financial affidavit as well as failure to disclose the true state of the party's financial status is violation of public policy and grounds to set the court decree aside. Baker v. Baker, 187 Conn. 315, 322-23 (1982). "The trial court in a dissolution of marriage action sits as a court of law and equity and it is incumbent upon the parties to disclose fully to the court all relevant information."
In Millbrook Owners Ass'n v. Hamilton Standard, 257 Conn. (2001), the court addressed the issue of sanctions. "We have long recognized that, apart from a specific rule of practice authorizing a sanction, `the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules.'"
The wife's testimony that she omitted the value of her total assets and net income on her two financial affidavits filed with the Court dated April 5th and April 27 was not credible. She is 50 years old, a college graduate, and has worked part-time as a bookkeeper in this family's real estate business for the past 25 years. She knew or should have known her income came from the three parcels of commercial real estate she owned with her brother and mother. For these reasons, the Court orders her to pay the husband $10,000 toward his legal fees.
The wife shall be responsible for her own legal fees.
The Court
Petroni, JTR