Opinion
No. FA 07-4028466S
May 18, 2011
MEMORANDUM OF DECISION
The parties were married on June 11, 1995 in Danbury Connecticut. The parties have lived in Connecticut continuously for at least one year prior to commencement of this dissolution action. The plaintiff wife filed for divorce in October of 2007, alleging an irretrievable breakdown of the marriage, in October of 2009 a final parenting plan was court ordered regarding the parties' only child, Chase Brown, (d.o.b. 2/15/97). The state of Connecticut is a party to the action as a result of the minor child and plaintiff wife receiving Husky health insurance.
The October 2009 final parenting plan is hereby incorporated by reference into the final judgment pursuant to C.G.S. § 46b-66(a).
The forty-eight-year-old defendant husband is a high school graduate and is licensed as a low voltage electrician. In either 1987 or 1988 the defendant began his own business, Mark's Total Security and in 2000 Mark's Total Security became a limited liability company (LLC). As an installation alarm business, Mark's Total Security, LLC, (hereinafter referred to as MTS), would contract out the actual monitoring of the alarm systems to an alarm central station. Bart Didden, President of USA Central Station Alarm Corp., (hereinafter referred to as USA Central), the monitoring station company that monitored most if not all of MTS alarm systems until December of 2009, described MTS as a "typical success story" in the alarm business. Independent expert testimony valued MTS, as of December 31, 2008 at $308,000. The $308,000 value is derived from MTS customer accounts; customer accounts consist of good will and recurring monthly revenue (RMR), the latter being the monthly fee paid by customers for the monitoring of their alarm system.
The value of MTS's other assets, such as inventory, equipment and furniture was difficult to determine from the testimony and evidence presented at trial. The bankruptcy trustee appointed for MTS, Attorney Roberto Napolitano, testified the MTS's bankruptcy petition `flouted' bankruptcy law and the defendant's persistent claim that MTS was valueless, given his fraudulent conveyance of the client accounts to USA Central insulted her intelligence. The plaintiff's business evaluation expert credibly testified that in 2008, MTS's value consisted solely of its recurring monthly revenue (RMR).
The plaintiff wife is fifty-five years old and has an associate degree from a Florida fashion school. After college and in the early years of her marriage, the plaintiff worked in various stores and in various positions including as a buyer and manager. Her last retail employer went bankrupt in approximately 1992; thereafter the plaintiff began assisting the defendant in his alarm installation business. Initially the plaintiff would help the defendant at job sites running wires and testing systems but when she became pregnant in 1996 she ceased going out on jobs and limited her work to the office, specifically computerizing the running of the business, taking responsibility for the billing, drawing up proposals and answering the telephone. The plaintiff eventually acquired sufficient knowledge to trouble shoot problems with customers over the phone. Presently, the plaintiff works for Business Resource Center, as a medical biller. She grosses $400/week and nets $369.40/week.
In February of 1998, the defendant fell forty feet from the top of a church while working and incurred traumatic injuries, including but not limited to fractures of his lumbar spine and a shattered heel. He underwent harvesting of pelvic bone for grafting purposes. The defendant was hospitalized for two weeks at Danbury Hospital, followed by two weeks of in patient rehabilitative therapy at Gaylord Hospital. Although medical providers recommended he remain out of work for a year, the defendant, a self-described workaholic, was back working by the middle or end of March of 1998. Although the defendant suffered from long-term pain and restricted mobility, with the plaintiff running the office and handling the finances and with the assistance at work sites of an intermittent employee, Christopher Jackson, MTS continued to grow and remained profitable.
In 2009, the defendant paid Mr. Jackson $22.00/hour for his services.
From the inception of MTS to approximately 2007, the parties worked collaboratively at running MTS; the defendant continued to do the installation and maintenance of the alarm systems and the plaintiff was responsible for the bookkeeping, payroll, organizational and the general clerical aspects of the business. Both parties testified the defendant had no substantive computer skills so therefore all computer related business activities were carried out by the plaintiff. Until early 2008, the business office operated out of the marital home at 100 Luciani Rd. in Woodbridge. The plaintiff considered herself either a co-owner of the business or a secretary of the LLC; the defendant disputes the plaintiff ever had any valid ownership interest in MTS or any valid membership in the LLC. Until February of 2008, the plaintiff managed all of MTS's finances and all of the parties' personal finances and all expenses, both personal and business, were paid out of MTS's business accounts.
According to the plaintiff, marital problems began to set in toward the end of her pregnancy. In 2006, the plaintiff learned of the defendant's infidelity with his present roommate. For years, the defendant was verbally abusive to the plaintiff and when angered he would put holes in walls and throw items. The plaintiff testified the defendant told her she was `out' of the business and no longer a co-owner.
The defendant initially claimed he was just friends with his present roommate, Renee St. Onge. The plaintiff hired a private investigator in 2007 and a tracking device was placed on the defendant's vehicle. At some point, the plaintiff contacted Ms. St. Onge which angered the defendant and resulted in him destroying chinaware in the marital home and office equipment.
Problems between the parties escalated in 2007 and in 2008. The parties entered into a pendente lite agreement on January 24, 2008, which attempted to address their physically separating from one another but outlined a plan to allow them to continue to collaborate in the running of MTS. In February of 2008, the business computer, previously operated by the plaintiff out of the home office and from which all of the business and family finances were conducted, became inoperable. A long-time friend of the defendant's, Mr. Paul Rivera, took physical possession of the computer and within a few days the computer was repaired. Consistent with the January 24, 2008 court order, the plaintiff requested the return of the repaired computer. Mr. Rivera, unaware of the court order, acquiesced to the defendant's direction that the repaired computer be returned to the defendant. Subsequent to the defendant and Mr. Rivera retaining possession of the repaired computer, Mr. Rivera, acting at the defendant's direction, unsuccessfully attempted to discover the password necessary to access the software on the business computer. Specifically, according to Mr. Rivera's testimony, the defendant sought access to the MTS client monitoring accounts database. Although the computer eventually became obsolete, Mr. Rivera retained possession of the software from the computer. According to Mr. Rivera neither he nor the defendant were able to access the client database in 2008. However, at the March 14, 2011 trial, Mr. Rivera testified that in January or February of 2011, the defendant again directed Mr. Rivera to attempt to access the information contained in the software. After contacting the software computer company in early 2011, Mr. Rivera was able to effectively `crack the code' to access the client database.
A partial protective order was in effect from December 15, 2007 through March 17, 2008. A domestic violence incident in or around December of 2007 resulted in the arrest of both parties. The plaintiff testified both parties' criminal cases were resolved by their acceptance into the judicial diversionary program known as the family violence education program.
In addition to a parenting plan, pertinent aspects of the January 2008 pendente lite agreement included:
(6) Defendant shall remove from the marital home all inventory and tools needed by him to continue working in the business Mark's Total Security, LLC and he may remove his clothing and personal effects.
(7) Any communications made between the parties by phone (and text messages) shall be concerning the business or their son, only.
(8) The plaintiff shall continue working in the business in the same manner as she has been and the defendant shall do the same. However, the parties agree to the following:
a) The parties shall use a "lock box" located in the Toyota 4 runner outside of the marital residence to exchange business files and business paperwork on a daily basis.
b) If Defendant needs a file on an emergency basis and plaintiff is not home when defendant calls to request the file, defendant may go into the marital home to retrieve it, so long as he leaves a message on plaintiff's cell phone (or speaks with plaintiff).
c) Defendant shall provide to plaintiff (via "lock box") a list of checks, receivable and payable and the amount of the checks deposited daily, along with the name of the client.
d) Defendant shall provide to plaintiff (via lock box) a list of the jobs he has worked on, the name of the clients and the amount charged, on a daily basis.
e) All mail that formerly went to 100 Luciani Rd shall continue to go there and shall not be diverted to any other location.
(9) Plaintiff shall issue a check to defendant in the sum of $600 a week. Plaintiff shall withdraw from the business account $350.00 per week for her expenses. Both withdrawals from the business account shall be made by check. Plaintiff shall leave defendant's check in the "lock box" each week on Friday.
(10) Defendant shall only charge gas and purchases for the business on the American Express business card and his Chase card. This does not include meals or personal purchases. The balance owed on these charge cards shall continue to be paid out of the business account.
(11) All other household expenses and bills, including household expenses, mortgages, insurance and other usual and customary bills shall continue to be paid from the business.
(12) Defendant shall be entitled to remove the business files from the marital residence with 48 hours notice to the plaintiff.
(13) At the husband's election he may retain a bookkeeper to review the books and financial records of the business including computer records. Access will be provided by the wife with reasonable notice to her.
(16) The plaintiff shall keep the files and the business records secured and will be responsible for keeping the door to the office locked."
Mr. Rivera and the defendant had been friends since Mr. Rivera was fifteen years old. The defendant had previously installed an alarm system for Mr. Rivera and the latter worked off a $2,500.00 alarm installation bill owed by him to the defendant by assisting the defendant in his work. As a result of the conflicts between the parties, in 2008 Mr. Rivera ceased assisting the defendant with the installation of alarm systems.
The defendant had Mr. Rivera return the repaired computer to office space he rented through Alpert Realty. In spite of the defendant's refusal to return the business computer to the marital home office, the plaintiff, in February of 2008, did agree to come to the defendant's newly rented office to assist him in dealing with finances and computer issues. On the plaintiff's initial visit to the new office, the defendant verbally mistreated the plaintiff and she therefore terminated her visit and refused to return again. The business computer remained permanently in the defendant's possession. The defendant claims the plaintiff's refusal to assist him was not because of his behavior toward her but because she was lazy and that she did not care about the business.
Access and control of the business computer became an increasingly divisive issue. The plaintiff contends the defendant improperly accessed her private communications with her attorney and that he also had hard copies made of her confidential emails. The defendant counters and claims the computer, while in the plaintiff's possession, was used to improperly transmit MTS client information from the plaintiff to her attorney. Assuming without deciding said allegations are accurate, the operative reality is this: noncompliance with the January 28th court order and the defendant's refusal to return the computer and his continued retention of the computer, commenced the slow and painful demise of both MTS's and the parties' financial well beings.
In addition to the computer dispute, the defendant, in February of 2008, without notice, changed the Bank of America business bank account from which the plaintiff historically paid all marital, personal and business expenses. The plaintiff had no access to the new bank account opened by the defendant and was therefore effectively cut off from all financial funding. Automobile insurance, mortgage payments, auto and van payments had been on automatic payment schedules from the closed Bank of America account. The defendant also had the plaintiff's cell phone turned off and mail was diverted from the marital home office. In short, commencing in February of 2008, the plaintiff had no ongoing knowledge of or control over MTS's finances or any aspects of MTS's operation.
The plaintiff also had mail diverted from the marital home to a friend's hair salon for a period of one month.
Pendente lite orders entered by the court, Frazzini, J., in July of 2008 increased the defendant's prior weekly unallocated support obligation from $500 to $800/week. The July 8th order contains the following language: "the purpose of this order is to give each party equal amount of net income and/or earning capacity. It is this Court's intent that each person draw equal amount from the business." The defendant eventually stopped paying the weekly support payment, and the mortgage on the marital home went unpaid and the home went into foreclosure.
On or about December 18, 2009, the defendant, without the plaintiff's knowledge, transferred all of MTS customers' monitoring accounts to USA Central Station to satisfy an approximate $45,500 debt. The defendant contends said transfer of accounts, which he describes as a `taking' or a `seizure' by USA Central Station, effectively `closed' MTS. On or about December 23, 2009 defendant filed a Chapter 7 bankruptcy petition on behalf of MTS. On December 28, 2009, the plaintiff's motion to appoint a receiver for MTS was granted by this court. The plaintiff engaged in retaliatory and desperate behavior as well. She filed a bogus complaint against the defendant with the Better Business Bureau using a friend's identity. When the defendant refused to sign off on paperwork to avoid foreclosure of the marital home, she forged his signature on a forbearance document and was arrested on a forgery charge.
During a June 22, 2010 hearing on the plaintiff's motions for contempt and the defendant's motion for modification of the pendente lite support orders, the defendant conceded on cross examination the MTS' client accounts had a value of at least $119,520. Credible expert testimony attached a $308,000 value to MTS in 2008; said value was sustainable into 2010.
The defendant filed for personal bankruptcy on or about September 15, 2009. As a result of the defendant's bankruptcy filing, the plaintiff filed for personal bankruptcy in October of 2009. MTS's bankruptcy petition was dismissed on March 1, 2010.
If, as the defendant claims, the plaintiff also posted a derogatory comment or comments on the internet about him and/or MTS, although imprudent, the impact of said postings were negligible and did not contribute to the financial demise of the business or to the defendant's earning capacity.
On or about December 30, 2009, a new alarm company was created. Mark's Total Alarm LLC (hereinafter referred to as MTA) has only one member, Marjorie Brown, the defendant's seventy-two-or seventy-three-year-old mother. The defendant is an employee of MTA and according to Marjorie Brown's March 29, 2010 testimony during a pendente lite motion hearing, the defendant dictates when Christopher Jackson is an intermittent employee or subcontractor of MTA. Marjorie Brown started MTA to give her son a job. In late 2009 or very early in 2010, Marjorie Brown purchased outright a new $24,000 truck for MTA. Although Marjorie Brown is the sole owner and member of MTA, LLC, she testified at the March 29, 2010 hearing that she does not know if she could operate MTA without Mark Brown's assistance. The American Express credit card formerly issued in the name of Mark E. Brown/Mark's Total Security (account number ending in #76006) was transferred into the name of Mark E. Brown/Mark's Total Alarm with the same account number. (Plaintiff's exhibit 26.) Marjorie Brown and the defendant decided to pay Mark Brown $350.00/week as an employee of MTA. In the March 2010 hearing, Marjorie Brown testified that MTA did not acquire possession or control of any of MTS clients' accounts but subsequently at a deposition she testified some of MTS accounts were converted to MTA clients.
It took time to outfit the newly purchased truck and MTA may have actually started doing business in either January or February or March of 2010.
The number of MTS clients that became MTA clients was raised several times throughout the trial by several different witnesses' testimony. No definitive number was ever forthcoming.
In May and June of 2010 the court conducted a hearing on various contempt motions filed by the plaintiff and on the defendant's motion for modification of the pendente lite support orders. The court concluded the defendant was in contempt of court for terminating the family's health insurance. The court granted the defendant's motion to modify and reduced the unallocated weekly support order from $800 to $125. The court also determined the existing arrearage owed by the defendant to the plaintiff equaled $19,975.
Hence the plaintiff filed for Husky Health Insurance for herself and the minor child.
The arrearage now equals $22,613.
Trial on the underlying dissolution action was initially scheduled to commence on October 6, 2009, but the defendant's September 15th filing for personal bankruptcy necessitated a delay in trial. Trial was again scheduled to commence in June of 2010, however, within days just prior to the scheduled commencement of trial, the defendant was hospitalized. According to medical records, on or about June 17th the defendant lifted a light weight and began experiencing increasing right foot numbness and pain running from his right hip down his leg. Chiropractic manipulation did not help and he spent from June 25-July 1 in the hospital. The hospital discharge summary states the following:
. . . Given that we obtained an MRI of his back, which did not show much given the fact that he already has Harrington rods and a lumbar CT on Orthopedics' request. His lumber CT showed essentially degenerative disease with no new changes. The degenerative changes are most predominate at L3-L4 and L4-L5 with mild canal and left neural foraminal narrowing at L3-L4. The surgical hardware is in good alignment with no residual, significant spinal stenosis or neural foraminal narrowing. He was given a Medrol Dosepak which help with his symptoms. The patient was seen by Physical Therapy who felt that he was well enough to go home and follow up with outpatient Physical Therapy.
Defendant's exhibit HH.
Post discharge from his June 2010 hospitalization, the defendant and his mother electively decided to decrease the defendant's MTA weekly pay to $200/week, apparently because of what workers' compensation was or was not willing to pay him and because of his self-determined diminished work capacity. Because the defendant's weekly pay decreased, the defendant, absent a court order, elected to unilaterally modify his weekly unallocated support payment to either $99.00 or $100.84/week. In April of 2011 the defendant continues to assert a diminished work capacity but also claims that in twenty-three years in the alarm installation business, he has never not been busy and is highly regarded by those within the industry and by clients.
On November 8, 2010 the court granted the plaintiff's motion to cite in USA Central Station Alarm Corporation as a party to the dissolution action. On November 15, 2010 the court granted the plaintiff's motion for temporary relief and ordered that USA Central was prohibited from terminating any of the accounts transferred to Central Station from MTS and Central Station was furthered ordered to maintain the status quo of said accounts until further order of the court and any money received from said accounts was to be held in escrow. At the commencement of the dissolution trial on March 14, 2011, the plaintiff withdrew count three of her seconded amended complaint, entitled `Fraudulent Conveyance', after reaching a settlement with USA Central Station. (Defendant's exhibit A.) USA Central is therefore no longer a party to the dissolution action.
Although the written motion in the file reflects a November 8th order an audio review of the November 8th and November 15th court hearings reflect that it was after the November 15th hearing the court granted the relief requested by the plaintiff.
Defendant's exhibit A, entitled Agreement states in part:
1. All of the accounts originally conveyed to USA Central by Mark's Total Security, LLC shall continue to be owned by USA Central. Gertrude Brown shall relinquish any and all claims or any direct or indirect interest in said accounts, except for the provisions of this agreement.
2. Gertrude Brown shall withdraw Count III of her Second Amended Complaint, entitled Fraudulent Conveyance, against USA Central in her marriage dissolution action in New Haven Superior Court, Docket No. FA 07 4028466 S and shall release USA Central from any claims except for the terms of this agreement.
3. In consideration, USA Central shall pay to Gertrude Brown a sum equal to the net income attributable to the accounts as described in paragraph one of this agreement, monthly on the 15th of each and every month commencing April 15, 2011. "Net income" is calculated as the income generated from the accounts after deducting the reasonable costs to service said accounts.
4. If Gertrude Brown participates in the servicing of these accounts and acquires new accounts or additional revenue from the accounts, any net income from her efforts shall be included in the calculations as outlined in paragraph 3 of this agreement.
5. USA Central shall provide Gertrude Brown documentation on a monthly basis verifying the monthly payment calculations.
6. Gertrude Brown shall use her best efforts to protect USA Central Station Alarm Corporation's and Bart Didden's names, through her dissolution of marriage action, prejudgment or postjudgment, if necessary and if appropriate.
7. If either party is found to have breached the terms of this agreement by a court of competent jurisdiction, then the prevailing party shall be entitled to reasonable attorney fees and costs.
Because the court no longer has jurisdiction over USA Central, in fashioning orders the court lacks the ability to direct orders at USA Central as requested by the defendant.
For the third time, trial on the dissolution action was scheduled and actually commenced on March 14, 2011 continued on March 15th, 16th, 29th, April 8, April 26th and concluded on April 29, 2011. In addition to addressing the dissolution action this court also has before it for consideration numerous ancillary motions. Initially, Attorney Robert Romano was appointed as attorney for the minor child (AMC). A breakdown in the relationship between the defendant and the AMC necessitated the AMC's removal. Attorney John Majors was then appointed the minor child's GAL. Both Attorney Romano and Attorney Majors have outstanding fees. Additionally, given the defendant's inability and unwillingness to comply with pretrial discovery and production, Attorney Robert Callahan was appointed by the court, Abery-Wetstone J., to oversee the disclosure and production of the parties' personal and business finances. Attorney Callahan is seeking reimbursement of additional fees incurred upon his re-involvement in the case. Attorney Weiss, the court appointed receiver for MTS, also seeks reimbursement for his services.
On or about March 22, 2011, the defendant filed a grievance against this trial judge. On March 29, 2011, pursuant to the C.P.B. section 1-22(b), at the defendant's request that another judge decide the disqualification issue, the court, Abery-Wetstone, J., conducted a disqualification hearing and denied the defendant's motion to disqualify the trial judge.
The dissolution trial did not go forward on April 26th. On or about April 20th the defendant was arrested for alleged statements he made to an employee of the Judicial Review Council regarding his frustration and displeasure about the dissolution trial and about Judge Conway. At the commencement of the morning trial on the 26th, the defendant orally moved for this trial judge's recusal and a mistrial because of the court's knowledge regarding the arrest warrant. The court made a subjective finding that it could remain fair, impartial and unbiased and referred the issue of disqualification to another judge. The court, Silbert, J. J., after a hearing, rendered a nine-page written decision, dated April 28th, denying the defendant's disqualification motion.
Attorney Romano's motion for contempt is motion #281. Motion #273 is the defendant's August 11, 2010 Motion to Modify, in which he asks for a suspension of payment of Attorney Romano's fees and a decrease in child support. The first time the court was asked to consider motion #273 was on the first day of trial, March 14, 2011.
A review of the court file reflects the defendant was represented by at least five different lawyers throughout the course of the case. The court appointed at least one and possibly two additional attorneys to represent the defendant on a contempt motion(s). For periods of time, the defendant represented himself. Defense counsel for the present dissolution trial first represented the defendant in 2009 but left the case and subsequently re-filed a second appearance on or about June 25, 2010.
The plaintiff has a motion for sanctions against the defendant and is seeking plaintiff attorney fees in excess of $72,000. An expert in the valuation of business, Philip DeCaprio, is seeking payment of his outstanding fees.
The court finds that it has jurisdiction of the matter presently before it. All statutory stays have expired. The court finds that the marriage has broken down irretrievably. The marriage is hereby dissolved and the parties are declared to be single and unmarried. After considering all of the statutory criteria set forth in C.G.S. § 46b-82, as to the assignment of alimony and life insurance coverage; C.G.S. § 46b-81, as to assignment of property and transfer of title; C.G.S. § 46b-66a, as to the conveyance of property; C.G.S. § 46b-84 as to child support and health insurance; C.G.S. § 46b-62, as to counsel fees; C.G.S. § 46b-56c, post-secondary education order, C.G.S. § 46b-63, name change, as well as the applicable case law and the evidence presented at trial, the court enters the following additional orders:
Alimony
Each party seeks alimony from the other. The plaintiff request $1.00 a year in alimony and the defendant requests that he receive 25% of whatever the plaintiff receives monthly from her personal settlement agreement with USA Central. (See footnote 18.) The plaintiff asks for the one dollar a year alimony as a form of protection: in the event the defendant tampers, interferes or sabotages her monthly payment from USA Central or if for some other reason the anticipated revenue from USA Central is not forthcoming, she would not be foreclosed either legally or practically from pursuing an alimony modification. The defendant argues the monthly USA Central payment is revenue to which he is entitled to receive a share of in the form of alimony, given that he established and built MTS throughout the course of the marriage and because of the uncertainty regarding his future health.
The monthly USA Central payment is taxable income to the plaintiff.
In determining the parameters of an alimony order the court considers the factors outlined in C.G.S. § 46b-82:" . . . the length of the marriage, the causes for the . . . dissolution . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . and, in the case of a parent to whom the custody of the minor children has been awarded, the desirability of such parent's securing employment."
The defendant's decision to hand over client monitoring accounts valued at $308,000 to USA Central to satisfy an approximate $44,500 debt was a reckless attempt to deprive the plaintiff and the minor child of any substantial means of support. The defendant admittedly told the minor child that he (the defendant) would give the business away for $1.00. The defendant's anger and disgust toward the plaintiff was extreme and unrelenting and his attitude toward any ongoing obligation to support his wife and child was steeped in selfishness and narcissism. Although the defendant claims MTS was `taken' or `confiscated' or `seized' by USA Central, in fact, it was not. While it is accurate that USA Central was demanding payment, USA had not commenced legal action against MTS. The defendant's claim that despite his best efforts to keep MTS afloat, even after being unjustly abandoned by the plaintiff and her computer skills, rings hollow. In early 2008, the defendant cut the plaintiff out of the daily running of MTS and then either intentionally and/or recklessly mismanaged the company and then handed over a $308,000 asset to satisfy a $45,500 debt. It is not a coincidence that within days after the transfer, the defendant filed a bankruptcy petition on behalf of MTS. Whether it was the defendant's hope or intent, post-dissolution, to recoup the accounts from USA Central or to navigate the monitoring accounts to Affiliated Central, a different alarm monitoring company that the defendant and MTA now does business with, is unclear. What is abundantly clear is that the cart blanche handing over of MTS client monitoring accounts was reckless, unnecessary and obviously done by the defendant to render him and MTS financially insolvent.
The defendant supports his claim that MTS was insolvent because the MTS's credit cards were `maxed out,' and the $50,000 business equity line of credit had been exhausted and therefore MTS could no longer meet its monthly expenses. A careful review of the evidence presented at trial however reveals the following: The `maxed out' credit card was seamlessly transferred from the defendant and MTS to the defendant and MTA and used for MTA business. The court was never presented with any credible and coherent information regarding MTS's profit/loss status after January of 2008, except that expenses were not paid. Finally, had the defendant attempted to sell off the customer accounts in a good faith attempt to globally address MTS' financial obligations and/or to attempt to achieve fiscal stability, different conclusions may have been drawn by this court. However as previously noted, the transfer of client accounts was an intentional and/or reckless act to divest MTS of value and thereby deprive the plaintiff and minor child of both short-term and long-term support.
The monthly payments from USA Central to the plaintiff will be approximately $4,000 or more a month, provided the client monitoring accounts remain with USA Central. The defendant in his proposed orders seeks to have access to the MTS customer accounts now being managed by USA Central the so called "706 customers." He asserts that many of the "706" customers are his relatives and friends who will leave MTS/USA Central once he is no longer affiliated with either entity and he needs to access the accounts to ensure that he does not unwittingly violate the court's no contact/no compete orders. The plaintiff objects to any disclosure, fearing the defendant will adversely impact her ability to maximize her monthly revenue from USA Central.
The plaintiff received approximately $3,900 in her first monthly payment from USA Central in April of 2011.
Why the customer accounts are referred to as the "706 customer" list is unclear to the court.
The court afforded the defendant opportunities to propose his own orders regarding the 706 customer list that would protect the plaintiff's monthly payments but also enable the defendant and MTA to move forward substantively unfettered in acquiring clients. When the court proposed that the defendant submit to the plaintiff the name or names of MTA's potential and/or present clients to determine whether interfacing with said clients could potentially be a violation of the no compete/no contact court orders, the defendant rejected said proposal. The court has carefully considered the competing interests at stake in this case and although the court is acutely aware of potential ramifications, the extreme facts of this case leaves the court with little choice. If left unrestrained, the defendant will go to undefined lengths to adversely impact the plaintiff's ability to maximize her monthly payments from USA Central. The plaintiff and the minor child suffered irreparable and devastating financial losses as a result of the defendant's actions over the past three years. The monthly payments from USA Central combined with the plaintiff's modest income from her present employer are the only reliable sources of income available to her and her minor child. Accordingly, the orders previously entered by the court on March 16, 2011 will remain operational and be incorporated by reference into the final judgment.
When the court modified the orders on March 16th, the court specifically informed the parties they would have the right to present further evidence and arguments regarding the court's orders and that the court would consider any proposed modifications proffered by the parties. On the last day trial, the modifications proffered by the defendant are reflected in his written proposed orders dated April 8th. In subsection J of his proposed orders the defendant requests that he be supplied with the #706 customer list, the clients' names and addresses and that said list be updated every six months, in subsection L of his proposed orders the defendant requests that he be allowed to continue working and finish the security installation jobs he began prior to the commencement of trial for Mark's Total Alarms, L.L.C. and in subsection M of his proposed orders the defendant requests that he be allowed to communicate and work on security systems that are the friends and relatives of the defendant. For reasons set forth within the body of the decision the defendant shall not be granted access to the #706 customer list. The defendant is free to pursue subsections L and M as long as it does not violate the court's March 16th no contact/no compete orders which are incorporated into the final judgment.
On March 14th the court entered temporary orders pending the parties' ability to be further heard after Bart Didden had testified and the parties and the court had time to reflect on the settlement agreement and USA Central dismissal from the dissolution action.
Thereafter on March 16th, after testimony and argument, the court modified its March 14th orders as follows:
1.a. The Defendant is prohibited from making disparaging remarks or negative statements about USA Central Station or Bart Didden to third persons.
b. The Defendant is prohibited from discussing with negatively the terms of the agreement between the plaintiff and USA Central Station to third parties.
c. The Defendant is barred from having any communications or any actions that in any way encourages, facilitates, motivates, or contributes to a present #706 customer terminating its relationship with USA Central.
d. The Defendant is prohibited from making disparaging remarks about the plaintiff to third persons.
e. Items 4 and 6 from the 3/14/11 motion for order are eliminated.
By the defendant's own admission MTS was profitable up until at least 2007. The defendant has made a fresh start with the creation by his mother of MTA. The defendant relies heavily on his past and present physical health to justify his inability to maintain the pendente lite support orders and for his present and future limited earning capacity. Although it is clear that the defendant suffered significant physical trauma in the 1998 fall he courageously battled back from significant injuries and for the next nine to ten years he worked long days to make MTS a "success story," notwithstanding his physical ailments.
The defendant's invocation of diminished physical health as justification for the financial decline of MTS and an inability to maintain the pendente lite support orders, at least prior to June of 2010 is not credible. Prior to his June 2010 mishap, the defendant's physical health remained stable and although he clearly did not enjoy optimal physical mobility and flexibility his physical well being from mid 1998 to June of 2010 remained constant. Both parties testified that the defendant traveled to Italy in 2007 at the request of a client to perform a significant alarm system installation.
The court has reviewed the testimony of the defendant and the medical records put into evidence regarding the defendant's June 2010 mishap and subsequent health issues. Again, the court recognizes the defendant suffers from a myriad of back/pelvic and extremity issues. Fortunately for him he dictates the kind and amount of work he performs for his mother's company and the defendant can recruit Mr. Jackson to assist him when needed. In determining the defendant's ability to generate income, the court is not limited to considering merely what the defendant claims he is presently capable of earning.
. . . [O]ur review of the case law suggests that earning capacity, as a standard by which the court determines alimony and child support obligations, is meant to be a flexible concept, particularly suited to cases where the designation of a precise monetary value of earned income is inappropriate. See Weinstein v. Weinstein, 87 Conn.App. 699, 710, 867 A.2d. 111 (2005) ("Generally, one's earning capacity is not synonymous with actual earned income. Our Supreme Court has stated that earning capacity is not an amount which a person can theoretically earn nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health" (citations omitted) . . .
Tanzman v. Meurer, 128 Conn.App. 405, 412-13 (2011).
Based on a careful review of the defendant's testimony and the exhibits the court concludes the defendant is physically capable of working a thirty-hour work week. Recognizing that he pays his assistant, Mr. Jackson, twenty-two dollars an hour and crediting Mr. DiCaprio's testimony that the going hourly rate for a alarm installer is twenty-four dollars an hour, the court hereby imputes to the defendant a gross income of $720/week. (30 hours x $24.00 = $720.)
While presently imputing a thirty-hour work week to the defendant is plausible, it is quite possible if not probable that going forward the defendant's physical issues will improve. The defendant's remarkable resiliency in the wake of the 1998 accident gives credence for such optimism.
The defendant testified credibly regarding his ability to engage clients for MTA without any need to advertise or to overtly solicit business. According to the defendant, his reputation within the alarm business industry is such that he is highly regarded. The defendant gets approached on city streets and he was even approached on the courthouse steps during this trial by potential clients. The defendant testified that in twenty-three years, he has never not been busy. Clearly, as long as MTA has the defendant as its employee, both MTA and the defendant have the potential to become another success story in the alarm installation industry. Because the defendant and his mother are closely aligned and committed to MTA, the defendant has ample ability to support himself. Accordingly, notwithstanding his health issues and giving great weight to the egregiousness of his behavior toward the plaintiff and his handling of MTS, the defendant shall receive no alimony from the plaintiff. The plaintiff shall receive alimony in the amount of $1.00/year from the defendant for a term of ten years, the term is nonmodifiable downward but modifiable as to amount pursuant to C.G.S. § 46b-86. Said alimony order shall terminate upon either parties' death or the plaintiff's remarriage. The plaintiff's cohabitation as defined by C.G.S. § 46b-86(b) may be grounds for modification of the alimony order.
Child Support
Pursuant to the parties' final parenting plan of October 6, 2009, mother has physical custody of the minor child. All pendente lite financial orders have been unallocated support orders. As of April of 2011, mother began receiving her monthly payments from USA Central; the April payment was approximately $3,900. The court calculates mother's present weekly gross income to be $1306 ($3,900 divided by 4.3 plus $400 a week gross from her employment). Based on the court's previous calculation in the preceding section, the defendant presently is deemed to have an earning capacity of $720/week; therefore the defendant shall pay child support in the amount of $103/week. (See accompanying child support guideline worksheet.)
The defendant is $22,613.00 in arrears to the plaintiff. He shall pay $47/week toward the arrearage until paid in full.
$970 is a medical reimbursement arrearage regarding the minor child.
As noted previously the minor child required Husky health insurance coverage after the defendant terminated the family's health insurance sometime in or shortly after December of 2009. The state of Connecticut seeks an order that the defendant pay the State $27/week.
Both parties shall provide medical and dental insurance for the benefit of the minor child if it is available to them at a reasonable cost. The cost of said insurance shall not exceed 7.5% of either parties' net income.
Given the totality of the court's ultimate financial orders in this case, and the hope that the minor child will sooner than later be insured privately, (provided the mother's income from USA maintains as predicted), and the court's intent to maximize the likelihood that the defendant will abide by the court's sweeping financial orders, the court declines to obligate the defendant to pay the State $27/week toward Husky Insurance. However, the parties shall each pay the State of Connecticut $1.00/year in alimony for the next eight years, modifiable only by the State pursuant to statute and each party's alimony obligation to the State terminates upon that individual's death.
Consistent with the child support guidelines, the mother shall be responsible for 70% and the father for 30% of any out of pocket or un-reimbursable health care expense for the minor child, including dental, psychological, psychiatric or orthodontic expenses.
Given the depth of the defendant's financial obligations as a result of the court's financial orders in this case, the court declines to obligate the defendant to pay any portion of the minor child's extracurricular activities.
Life Insurance
At the time of the filing of the dissolution action both parties had life insurance policies. The plaintiff was forced to cash out her policy and the net proceeds of somewhere between $5,000 to $10,000 were applied to attorney fees which to date now exceed $80,000. The defendant testified that his life insurance policy of unknown value remains intact and when he last checked in 2008, "it pays for itself."
The defendant shall make immediate inquiry into the status of his present life insurance policy. If said policy in fact remains intact then the defendant shall make reasonable efforts to maintain said policy with a death benefit to equal not less than his outstanding child support obligation, including arrears and as collateral for post-secondary educational support. The minor child shall be designated as the beneficiary of said policy and the plaintiff shall be the trustee of said benefit.
If no existing life insurance policy is presently in place, the defendant shall acquire as much life insurance as possible, identifying the minor child as the beneficiary, and the plaintiff as the trustee for the minor child, for a cost of not less than $500/year. Said order is in the nature of child support.
The plaintiff shall make reasonable efforts to secure life insurance for herself and designate the minor child as the beneficiary. The plaintiff shall be required to spend no more than $500/year for said life insurance and shall act as collateral for post-secondary education purposes.
Commencing July 1, 2011 and every July 1st thereafter, at the written request of either party, official documentation reflecting the current status of each parties' life insurance policies, namely the cost, the death benefit amount and the named beneficiary shall be disclosed to the requesting party until the minor child reaches twenty-three years of age.
Post-Secondary Education Support Order
Both parties testified that had they remained an intact family, they would have contributed to the minor child's college education. By agreement of the parties, the court retains jurisdiction pursuant to C.G.S. § 46b-56c.
Debt
As indicated previously, both parties' debt was discharged in separate bankruptcy proceedings initiated in the latter part of 2009. The bankruptcy petition filed by the defendant regarding MTS was dismissed. In section F of his proposed orders, the defendant alleges marital and MTS debt approximating $250,000 and seeks an order making both parties equally responsible.
Noteworthy in the bankruptcy petition filed by the defendant on behalf of MTS is the listing of only three creditors: Gertrude Brown for "court ordered unallocated alimony and child support from business — $2,000, USA Central — $45,000 (but on page 18 the defendant characterizes a seizure by USA Central of `client list as per contract') and GMAC — truck $15,000." Defendant's exhibit 14. Although many of the listed debts in the defendant's proposed orders had already begun accruing at the time of the filing of the bankruptcy petition, only the above identified debt was included in the bankruptcy petition.
As indicated previously, the court has carefully considered the defendant's claim that MTS, commencing in 2007, did not generate sufficient revenue to pay its bills and/or to generate a profit. The court recognizes that as an intact couple both parties engaged in significant discretionary spending and both liberally delved into MTS funds. Neither party was particularly prudent in their spending habits. The parties refinanced the marital home several times, each time drawing out additional equity which was used to continue to fund their lifestyle — with the last refinance funds partially applied to the defendant's purchase of a new Corvette. Nonetheless, subsequent to the commencement of the dissolution action until June of 2010, had the defendant made a good faith effort to keep MTS fiscally sound, both in terms of maintaining his historically admirable work ethic and in managing the financial operations, either by figuring out how to continue to collaborate with the plaintiff or by hiring someone to manage the business, MTS would have continued to survive throughout this dissolution action. Instead the defendant vindictively and recklessly and/ or intentionally ran MTS into the ground, in part by accruing the debt he now claims should be borne equally by the parties.
For the foregoing reasons, the defendant shall be responsible for all of the debt outlined in section F of his proposed orders and on his financial affidavit and he shall indemnify and hold the plaintiff harmless.
Corvette
By agreement of the parties, on April 8, 2011, the court ordered the sale of the Corvette purchased by the parties in 2007. The Corvette presently has an outstanding loan balance of approximately $21,000 and Richard Chevrolet offered to purchase said Corvette for $28,500. Any net proceeds from the sale of the corvette shall be applied to satisfy the following fees in the following order:
Attorney Weiss' fee shall be capped at $3,500 which shall be deemed full payment for his services.
Attorney Majors's fees total $5,635. The parties previously agreed to share the cost equally. The plaintiff to date has paid Attorney Majors $525 and the defendant has paid nothing, leaving an outstanding balance of $5,110. Any remaining net proceeds from the Corvette sale shall be applied to Attorney John Majors's fees. Any deficiency remaining regarding Attorney Majors's fees shall be the sole responsibility of the defendant and he shall pay any deficiency at a rate of $50/month until paid in full.
Attorney Callahan's fee
Attorney Callahan was required to intercede a second time in the case in order to facilitate the disclosure of necessary financial records and documents by the defendant. Attorney Callahan's outstanding fee of $1,524.80 shall be paid by the defendant at a rate of $100/month until paid in full.
The difficulty in obtaining the defendant's cooperation in complying with pretrial discovery and production cannot be overstated. In January of 2011, the defendant was held in contempt and incarcerated for noncompliance with the court's order regarding production of monthly 2009 bank statements.
Attorney Romano's contempt motion #281 and Defendant's Motion to Modify 4273 (fn 22)
In May of 2009, the court, Markle, J., ordered the defendant to pay the AMC, Attorney Romano, $8,000 and the court outlined the rate at which the fee would be paid. This court, after an evidentiary hearing, in a December 30, 2009 written decision, found the defendant in contempt of the order [ 49 Conn. L. Rptr. 129]. However, in an attempt to figuratively triage the court's orders, with priority given to the weekly support order, and having just recently incarcerated the defendant for nonpayment of support, the court declined to set a purge amount regarding the outstanding monies owed to Attorney Romano. Instead this court ordered that the defendant comply with Judge Markle's payment schedule.
The payment scheduled ordered in May of 2009 required a $400 within thirty days and then a monthly payment of $200/month until paid in full. As indicated, a $6,480.12 balance exists.
Since December of 2009, the defendant has paid nominal amounts toward the AMC's bill. In early 2010 the defendant did make twenty-five dollar payments and said payments increased to $100 payments. However, in 2011 the payments averaged $5.00-$6.00/ week for January and February.
The defendant seeks total suspension of any further payments to Attorney Romano pending improvement of his back and extremity issues. The court has already opined about the defendant's health and the court has imputed an earning capacity and as such the defendant's request to suspend further payments is denied. The defendant shall pay the $6,480.12 still owed to Attorney Romano. Again in an attempt to foster compliance with the court's sweeping financial orders the court will modify the payment schedule ordered by Judge Markle and the defendant shall pay Attorney Romano at the rate of $150/month until paid in full. Motion #281 is hereby concluded with no finding of contempt. However, any future noncompliance with the court's order shall be grounds for Attorney Romano to pursue a new motion for contempt.
To recap, the defendant shall be liable for any monies owed to Attorney Majors, Attorney Callahan and Attorney Romano that is not offset by the sale of the corvette. The defendant's monthly obligation to these lawyers at its height will equal $300. These lawyers have waited long enough for their just and fair compensation. The defendant has the earning capacity to meet these court orders and his failure to make timely and sufficient monthly payments shall be grounds for further contempt proceedings.
Siena and 4-Runner
Said vehicles shall be the sole possession of the plaintiff and she shall be responsible for all expenses and hold the defendant harmless.
Marital Home/$26,000 unsecured loan owed to Marjorie Brown
The marital home located at 100 Luciani Road is in foreclosure proceedings. The plaintiff and minor child shall have exclusive possession of the home for as long as they are legally permitted to reside in the home pending resolution of the foreclosure action.
The marital home was the defendant's childhood home which he purchased from his mother in 2000 for approximately $136,000. The parties refinanced the home several times and jointly used the equity to pay off credit card debt, to possibly infuse money into MTS and with the last refinance in 2007 the equity drawn out of the house was used in part by the defendant to finance the purchase of a Corvette. The defendant claims the parties jointly owe his mother $26,000 in an unsecured loan that dates back to the initial purchase of the home.
Given the events of the past three years and the woeful financial situation the plaintiff now faces as a result of the choices and actions of the defendant since 2007, and given Marjorie Brown's creation of MTA, the defendant shall be solely responsible for the $26,000 unsecured loan owed to Marjorie Brown and the plaintiff shall be indemnified and held harmless by the defendant regarding said unsecured loan.
Personal Property
Within thirty days of judgment, the plaintiff shall turn over to the defendant the following items:
— dining room table, chairs and cabinet
— black rocking chair
— tv cabinet
— glass napkin holder
— garage shelving
— metal sign "JE Bassett Co." if it can be located
— comic books and baseball cards
— coins
— Family photos — Within six months from judgment, the plaintiff shall select not less than fifty family and/or minor child photographs (if there are less than fifty photographs than all existing photographs) and she shall at her expense copy said photos and deliver said photos to the defendant's attorney for disbursement to the defendant.
— any boxed All Comm equipment that can be located in the marital home after a good faith search of the home. (The defendant shall be solely liable for any outstanding money owed on said equipment regardless of whether said boxed equipment is located in the marital home.)
Workers' Compensation Claim
The defendant shall retain sole possession of any funds he receives from a worker's compensation settlement or award. However, the defendant shall immediately, upon receipt of said settlement or award pay in full any outstanding balance owed to Attorney Callahan and then any outstanding balance owed to Attorney Romano. If any of the workers' compensation net settlement or award remains after said payments, 75% of any remainder shall immediately be applied to any outstanding support arrearage. Defendant's attorney shall immediately notify the defendant's worker compensation's attorney, in writing, of this court's order.
Dependency Exemptions
The parties shall alternate claiming the minor child as a dependent for purposes of income taxes. The plaintiff shall claim the minor child in odd years, commencing in 2011 and the defendant shall claim the minor child in even years commencing in 2012. The defendant shall forfeit said exemption if he is in arrears in his current child support obligation, or if he is not current in his weekly support arrearage payment or if he is not current in his portion of the minor child's out of pocket or un-reimbursable health care expenses or if he is deficient in his payments to Attorney Majors, Attorney Callahan, Attorney Romano or Attorney Subbloie or if he is found to have violated the court orders as to the "706 client" list.
Name Change
The plaintiff's maiden name of Cech shall be restored as requested.
Mark's Total Security LLC
By agreement of the parties, MTS LLC shall be permitted to initiate and pursue whatever actions are necessary to dissolve the LLC known as Mark's Total Security, all costs regarding said process shall be borne by the defendant.
Plaintiff's Motions for Attorney Fees and for Sanctions (Motion #299)
The defendant was previously ordered to pay the plaintiff's attorney $2,000. The defendant shall pay to plaintiff's attorney the said $2,000 within ninety days from the judgment. The defendant shall be responsible for his own attorneys fees.
Neither party shall make disparaging comments regarding each other, MTS or MTA.
The two remaining issues encompassed in motion #299 consist of the plaintiff's request that the defendant be ordered to pay 75% of her attorney fees (as of April 29th plaintiff's attorney fees were in excess of $82,000) and that the defendant be liable for the balance owed to Mr. DeCaprio (approximately $5,400). Although motion #299 is couched in terms of sanctions, the court also notes awarding attorney fees based on factors outlined in C.G.S. § 46b-62 is within the court's discretion.
This has been an extremely protracted and difficult dissolution action. The court cannot over state the unnecessary emotional and financial costs incurred by the plaintiff because of the decisions and behaviors the defendant has executed over the past three years. The court has endeavored to reach a fair and equitable decision that takes into consideration the past but allows the parties to move forward independent of one another. Assuming compliance with the court's orders and because of the plaintiff's attorney's conscientious and unfailing representation of her client, including but not limited to the settlement agreement with USA Central, the plaintiff and minor child should be able to recover, albeit not completely, from the devastating effects of the last three years.
The court has strived to fashion financial orders that are functionally feasible but also fairly and accurately hold each of the parties accountable for their decisions, behavior and judgments over the course of the marriage and particularly during the pendency of this dissolution action.
In Ramin v. Ramin, 281 Conn. 324 (2007), our supreme court enunciated the purpose of awarding attorney fees in a case where one party has exhibited egregious litigation behavior.
. . . [T]he purpose of the expansion of [ Maguire v. Maguire, 222 Conn. 32 (1992)], is to compensate an innocent party for having had to bear the burden of expenses incurred as a result of the other party's misconduct. The aim of the expansion is to prevent the innocent party from being unfairly burdened. The fact that the result may also deter the wrongdoer from benefitting from his egregious litigation misconduct does not convert an award under the expansion to a sanction. It simply reallocates the burden for the increased fees to the party responsible for causing them.
Ramin at 358.
As articulated previously in this opinion, the defendant repeatedly employed delay tactics in complying with discovery orders and habitually disregarded court orders. Five different defendant lawyers came and went from the case and additional attorneys were appointed to represent the defendant for contempt hearings. Upon incarceration, the defendant would, in a matter of hours or days post thousands of dollars to satisfy court set purge amounts, after representing to the court that he lacked financial resources to comply with court orders.
The court is aware of the defendant's present financial situation and how he has arrived there. Again, if the defendant exercises a good faith attempt, the court is certain that the defendant and MTA will move forward and become another success story in the alarm installation business. That said, obligating the defendant to pay any portion of the $80,000 plus plaintiff attorneys fees, at this time, seriously jeopardizes the court's other financial orders. Because the potential consequences of noncompliance with the court orders has serious ramifications, the court declines to order the defendant to pay any additional plaintiff's attorneys fees.
The $80,000 plus in attorney fees are more than reasonable and justified in this case. The level of professional dedication and diligence exhibited by plaintiff's counsel has been exemplary and if the financial realities in this case were different, the plaintiff's request for attorney fees would have been granted.
The same analysis dictates a different conclusion as to Mr. DeCaprio's approximately $5,400 outstanding bill. The defendant's chronic dilatory and defiant noncompliance with discovery and other orders of the court throughout the past three plus years was egregious and malicious. As the sole member of MTA LLC, Mrs. Marjorie Brown also intentionally circumvented and impeded the discovery process. Noteworthy to this court is that upon the defendant's last incarceration for contempt in January 2011, Mrs. Marjorie Brown arrived at the courthouse within hours of the court's ruling and conveyed $1,000 in cash to secure her son's release. The court also notes that according to the defendant, Ms. St. Onge has substantively financed the defendant's day to day living for the past several years. For all of the foregoing reasons, the defendant shall be solely responsible for the outstanding monies owed to Mr. DeCaprio. The defendant shall immediately contact Mr. DeCaprio and work out an agreeable payment plan. If no agreement is reached, the defendant shall pay the outstanding balance within six months of the date of judgment.
In conclusion, the court finds the financial orders issued today, are fair and just under the totality of circumstances and, but for an award for additional attorney fees, effectively grants the relief requested by the plaintiff in her motion for sanctions. Because no further practical relief can be granted, the plaintiff's motion for sanctions is denied.