Opinion
No. FA09-4037538 S
April 29, 2011
MEMORANDUM OF DECISION
This matter was tried before the court, on January 10th and 11th, 2011. Briefs were submitted by counsel on February 4, 2011. The Plaintiff, Defendant and several witnesses testified and exhibits were introduced. The court has considered all of the credible evidence presented to it and carefully considered the respective criteria for orders of (child support, health insurance, payment of children's medical expenses), (alimony, property settlement, division of debt) and award of counsel fees. The court makes the following findings of facts and orders:
The parties were married on July 22, 1989 in Wallingford, Connecticut. The court finds that it has jurisdiction over the marriage. One of the parties has lived in the State of Connecticut for more than one year prior to bringing this action. The following minor child has been born to the parties since the date of the marriage:
Justin, date of birth, July 25, 1996.
No other minor children have been born to the wife since the date of the marriage. The parties have one adult child under the age of 23, Jessica, date of birth, October 25, 1992. The parties are not receiving state assistance. The court finds that the marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.
Mr. Brown is 42 years old and in relatively good health. His education consists of 1 year at Central Connecticut State University and a certification in Water Management from Gateway Community College.
Mr. Brown is employed by South Central Connecticut Water Authority as a treatment supervisor. In 2008 his gross earnings were $97,266.53 (Ex. 7), in 2009 his gross earnings were $93,236.27 (Ex. 8) including overtime.
At trial the defendant testified he recently received a 3% raise. Mr. Tobin, a witness from the Water Authority, testified Mr. Brown's base salary is $78,294 and plaintiff earned $82,595 including overtime in 2010.
Mr. Brown's employer provides him with a vehicle and gas if he chooses to utilizes it, for his overtime.
Mr. Brown is provided with 401k with a balance of $34,357.79 as of January 6, 2011. The balance does not include 2 401k loans the initial one on July 29, 2010 in the amount of $23,340 and final loan on November 11, 2010 in the amount of $12,679.42. The plaintiff failed to list the current balance of his 401k on his trial Financial Affidavit.
The defendant is also provided with a pension through his employer with a cash balance of $36,721 as of January 1, 2011. The pension was also omitted from the plaintiff's trial Financial Affidavit.
Mr. Brown's trial Financial Affidavit failed to accurately reflect his overtime over the past 13 weeks. Utilizing the payroll information in Exhibit 5 Mr. Brown's gross earnings averaged $1,674.44 over the 13 weeks preceding the trial. His original trial Financial Affidavit filed January 10, 2011 reflects gross income of $1,529.62, which was corrected by an Amended Financial Affidavit on January 11, 2011.
Mr. Brown operated a snow plowing business for several years. Exhibit 9 reflects a list of 16 customers over a four-year period. At trial the plaintiff testified he earned approximately $3,000 cash per year from snow plowing. Mr. Brown testified that he was not currently operating because his plow needed repairs that cost $3,400.
The defendant left the family home at the end of May/early June 2009 and gave the plaintiff $650 per week while staying with his father.
The defendant testified he could no longer maintain the household when he obtained an apartment for himself and the couple's daughter.
Mrs. Brown is 43 years old. She attended Central Connecticut State University for one semester in 1986 and was a Communications major at LaSalle College for 1 year in 1987. She returned to Central in 1988 and completed 1 year.
In 1990 Mrs. Brown was involved in an automobile accident interrupting her work and education. She attempted to complete her education at Post University in Waterbury but was unsuccessful due to her inability to sit or stand for long periods of time.
Mrs. Brown was employed as a waitress 3-4 days a week when the couple married. This job terminated in 1990 due to her car accident.
In 1991 she was employed as a babysitter 6 hours per day 5 days per week earning $200 for 8 months.
In 1992 the couple's first child was born and by mutual agreement Mrs. Brown became a stay-at-home mother until the children were in school full-time. When the couple's son was in 2nd grade the plaintiff worked as a paraprofessional 3 hours per day 5 days a week. The following year she was employed at BJ's Deli for 5-hour shifts 2-3 times per week.
Mrs. Brown did not work during the summer so she could be home with the couple's children.
The wife was also a seasonal employee of Fed Ex for one holiday season. She testified she did not return due to pain suffered as a result of lifting heavy boxes.
Mrs. Brown has been employed at the East Center Market Deli since 2007 or 2008 working from 4 p.m.-6 p.m. 2-3 days per week. She earns $10.50 per hour.
The wife filed a lawsuit after her 1991 auto accident. The driver of the other vehicle had the minimum insurance and the plaintiff sued her own insurer. She ultimately collected a gross settlement of $157,000 and netted $92,000.
The plaintiff and defendant utilized $90,000 for a down payment on their first home in North Madison, Connecticut. They later sold that home and used the proceeds of approximately $100,000-$150,000 to buy the marital home in Wallingford. ($179,000 purchase price, original mortgage $85,000). The family home was sold shortly before trial and the proceeds of $149,967.63 are held by the closing attorney. The wife received $2,500 by stipulation dated December 17, 2010 to complete needed auto repairs.
ISSUE
The burden of proof regarding the wife's inability to work was raised at trial. The plaintiff contended that the defendant had the burden to prove she was disabled/injured as a result of the 1990 accident and unable to work full time. The defendant claimed the plaintiff had the burden of proof to demonstrate to the court she was unable to support herself and was entitled to lifetime alimony.
In the plaintiff's post-trial brief, she words the issue "as to who had the burden to prove or refute her claim of being unable to maintain full-time job employment." The plaintiff argues that the burden is on the defendant since she would have to prove a negative. For that proposition she relies on Preston v. Keith, 217 Conn. 12, 584 A.2d 439 (1991) in which the court placed "the burden on the [d]efendant to prove that a [p]laintiff failed to mitigate [her] damages." The plaintiff argues that in Preston, the court explained that, because the rule would call upon the defendant to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, the proof should be on the defendant. Id., 22. Therein, the court further stated, however, that this rule of "placing the burden of proof on the issue of mitigation of damages upon the defendant applies to actions for personal injuries or property damage arising out of tortious activity and to actions for breach of contract." Id., 21-22. Even if the rule applied to an award of lifetime alimony and did require the plaintiff to prove a negative, the Appellate Court has stated that the "mere fact that a party is required to prove a negative does not mandate that the burden of proof regarding that issue shifts to the opposing party." Northeast Enterprises v. Water Pollution Control Authority, 26 Conn.App. 540, 544 n. 4, 601 A.2d 563 (1992).
Next, the plaintiff argues that the defendant, who "had the legal right to try and prove that the plaintiff was employable on a full-time basis . . . failed to exercise that right." She maintains that the defendant, who had the right to ask for an independent medical evaluation of the plaintiff as to her claim of disability in order to refute this claim, chose not to, and as a result, the plaintiff, who does not have the burden of proving her disability, should not be saddled with that responsibility and denied lifetime alimony. In support of this argument, she cites Tevolini v. Tevolini, 66 Conn.App. 16, 783 A.2d 1164 (2001) and Pasquariello v. Pasquariello, 168 Conn. 579, 362 A.2d 835 (1975). Finally, she argues that "the court can rely upon the plaintiff's own testimony as to her disability."
In his post-trial brief, the defendant argues that, based on the rules of Connecticut evidence and cases interpreting them, the burden of persuasion is on the party requesting the legal right, which is the plaintiff in the present matter. In other words, since the plaintiff is claiming that she has a disability preventing her from full-time employment, she has the burden of proof on that issue.
CT Page 10447
DISCUSSION
"As is true in all cases, the plaintiff must prove the allegations of his complaint. Bridge Street Associates v. Water Pollution Control Authority, 15 Conn.App. 140, 143-44, 543 A.2d 1351 (1988); Janow v. Ansonia, 11 Conn.App. 1, 8, 525 A.2d 966 (1987); Anderson v. Litchfield, 4 Conn.App. 24, 28, 492 A.2d 210 (1985); Southland Corporation v. Vernon, 1 Conn.App. 439, 443, 473 A.2d 318 (1984) (ordinarily, the allegation of facts allocates the burden of proof to the party pleading them). The standard of proof is that of a fair preponderance of the evidence. Faith Center, Inc. v. Hartford, 39 Conn.Sup. 142, 154, 473 A.2d 342 (1982), aff'd, 192 Conn. 434, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984)." (Internal quotation marks omitted.) Northeast Enterprises v. Water Pollution Control Authority, 26 Conn.App. 540, 543, 601 A.2 563 (1992)."It is an elementary rule that whenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such party to show the existence of such fact . . . Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 645, 866 A.2d 588 (2005)." (Internal quotation marks omitted.) Lindholm v. Brant, 283 Conn. 65, 77, 925 A.2d 1048 (2007). "When the pleadings place the burden of proving any matter in issue on the plaintiff, he must in the first instance, introduce all the evidence upon which he relies to establish his claim. DiMaio v. Panico, 115 Conn. 295, 298, 161 A. 238 (1932)." (Internal quotation marks omitted.) Rosenfield v. Cymbala, 43 Conn.App. 83, 93, 681 A.2d 99 (1996).
An award of alimony is governed by General Statutes § 46b-82. A court must "consider a number of factors, including the health of the parties." Tevolini v. Tevolini, supra, 66 Conn.App. 23. "Our Supreme Court has stated that health is a material factor in awarding alimony. McGuinness v. McGuinness, 185 Conn. 7, 10-11, 440 A.2d 804 (1981); see Gallo v. Gallo, 184 Conn. 36, 49, 440 A.2d 782 (1981). A party's health is one of the factors which draws its significance, in part, from the impact it necessarily has upon other statutory [§ 46b-82] factors. For example, a party's health problem may also have an impact upon such things as vocational skills, employability, income and/or needs. A. Rutkin, K. Hogan S. Oldham, Family Law and Practice (2d Ed. 2000) § 33.8, p. 46 . . . [I]n a dissolution action . . . [t]he court is to consider these factors in making an award of alimony, but it need not give each factor equal weight . . . As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony." (Internal quotation marks omitted.) Tevolini v. Tevolini, supra, 23.
Section 46b-82(a) provides in relevant part: "In determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . ."
In Tevolini, the plaintiff, Gennaro Tevolini, appealed from the judgment of the trial court dissolving his marriage to the defendant, Pamela Tevolini. Id., 17. On appeal, the plaintiff claimed, inter alia, that the court abused its discretion in making its financial orders after it had precluded him from contesting the defendant's assertion as to the condition of her health, which was a material fact in the court's fashioning of its alimony order, and had created an irrebuttable presumption that the defendant was disabled. Id.
In discussing the trial court's decision in which it disallowed the plaintiff from contesting the defendant's assertion as to her health, the Appellate Court stated it must at the outset consider the plaintiff's claim that the "court improperly concluded that the defendant was disabled when, as the plaintiff claim[ed], the defendant offered no evidence of her alleged illness other than her receipt of social security disability benefits and her testimony that her illness caused the end of the marriage . . . [T]he only evidence that the court permitted as to the defendant's health was the defendant's statement that she believed that her illness was the cause of the dissolution of the marriage. When the plaintiff objected to that statement because `we haven't heard any testimony concerning her illness,' the court stated that `[w]e don't have to. We know that she is on social security disability. She didn't get there out of the grace of God. All right.'" Tevolini v. Tevolini, supra, 24-25.
The Appellate Court further stated that the record is devoid "of any documentary evidence of the defendant being `totally or fully' disabled . . . [She has testified] that her `illness' was the cause of the end of her marriage and [provided] on her financial affidavit that she receives $910 monthly in social security benefits. In like fashion, there is no evidence in the record that she suffers from and is disabled by the maladies of the Epstein-Barr virus and chronic fatigue syndrome. The record discloses only representations by the defendant's counsel that the defendant was suffering from those maladies. That cannot be considered legally valid evidence. Once the defendant put her health in issue, it was incumbent on her to offer pertinent evidence to support her position . . . That she did not do. Moreover, the court's ruling, which was based on the lack of evidence before it, that the Social Security Administration's `determination' to award her monthly disability payments effectively terminated the plaintiff's right to examine the defendant as to her disability, was improper, given the significance of `health' as a material factor under § 46b-82." (Citation omitted.) Tevolini v. Tevolini, supra, 26-27.
The Appellate Court agreed with the plaintiff, that the actions of the trial court "created an irrebuttable presumption that the defendant was disabled." Id., 28. In clarifying its position, the Appellate Court explained: "[F]irst . . . neither party claims that the court relied on any statutory authority provided for in the Social Security Act that creates any presumption that receipt of disability benefits by this defendant in a dissolution case irrebuttably forecloses any inquiry by a plaintiff into the health of that defendant. Second, it is the plaintiff's claim that nonetheless, the practical effect of the court's ruling was to render his efforts to explore the health issue at trial fruitless, as if the disability payments did, in some fashion, justify the court's announced `policy.'" Id., 29.
The court concluded "that because the defendant placed her health at issue in her claim for alimony, the plaintiff then had a right under § 46b-82 to be heard and to offer evidence to refute that claim. That right to be heard, to be meaningful, included, inter alia, the right not only to argument, but also to present evidence at the trial regarding that issue. Even though an action for divorce or dissolution of marriage is a creature of statute, it must be remembered that divorce `is essentially equitable in its nature.' Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975)." Tevolini v. Tevolini, supra, 24.
The court infers from Tevolini that the burden of proving disability for purposes of an award of alimony is on the party placing his or her health condition into issue. As in Tevolini, the plaintiff in the present case placed her health condition at issue, whether she referred to it as an inability to be employed full-time or a disability, thereby, positioning the burden of proof on her, not on the defendant.
In a recent Appellate Court case, Pellow v. Pellow, 113 Conn.App. 122, 964 A.2d 1252 (2009), the court was confronted with the issue of whether a trial court must make an express finding that a party is "seriously disabled" and unable "to perform meaningful employment" before entering various financial orders. Id., 124-25. In Pellow, the defendant, Steven Pellow, appealed from the judgment rendered by the trial court dissolving his marriage to the plaintiff, Alise Pellow. Id., 123. He claimed that the trial court "improperly based its financial orders on a finding that the plaintiff was `seriously disabled' and unable `to perform meaningful employment' because her disability was either unsupported by any medical evidence or contrary to other evidence produced at trial." Id., 125. The Appellate Court, however, disagreed with his claim. Id.
In explaining why it was not necessary for the trial court to have made an express finding on the plaintiff's disability, the Appellate Court stated that "[i]n [its] memorandum of decision, the court found that the defendant was aware of most of the plaintiff's serious medical and physical problems at the time of the marriage. The plaintiff testified at trial about her experience with the various health issues she faced prior to and during the marriage and how the various health issues affected her life and ability to work. The record reveals that the defendant, by his volition, did not cross-examine the plaintiff about her alleged health issues. Rather, the defendant waited until his closing remarks at trial to address the plaintiff's health allegations.
"The defendant argues that in addition to the plaintiff's failure to offer proof, other than her testimony, of a disabling medical condition, the plaintiff contradicted her testimony with statements concerning her role as a domestic partner, parent and homemaker. Specifically, to support his argument, the defendant refers to the plaintiff's testimony that reflected her ability to take care of the children, to cook meals for the family and to be actively mobile for family activities and her declaration to the court that by 2003 she had recovered from her injuries and was feeling `fabulous.'
"Nonetheless, on the basis of that conflicting testimony, the court, as the trier of fact, reasonably could have found that despite the plaintiff's feeling better in spring, 2003, she became ill again in October 2003, by contracting Guillain-Barre syndrome after she was given a flu vaccine. In addition, it would not have been unreasonable for the court to have found the plaintiff's testimony credible, such that she delayed receiving treatment for her condition, until spring, 2004, so that she could care for the defendant while he had pneumonia. In light of the testimony and evidence presented at trial, we conclude that there was sufficient evidence before the court for it to make a factual finding that the plaintiff was disabled and unable to work." Pellow v. Pellow, supra, 113 Conn.App. 126-28.
It is noteworthy that in Pellow during the closing arguments, the defendant, while espousing on the health issues, stated: "It seems to me that the crux of the plaintiff's case is this health issue and the ability of the plaintiff to work. Your Honor, this plaintiff has come to this court every single time we've had a court hearing on her own steam. She does not appear to be disabled. She has actually applied for jobs during the course of the marriage . . . The burden is on her to show that she's disabled and unable to work, and she simply hasn't shown that, Your Honor . . . I say she is able to work. She's got drive and physical capacity. She shows absolutely no sign of being disabled, and she hasn't offered the evidence to this court on which the court could conclude that she's unable to work." Pellow v. Pellow, supra, 113 Conn.App. 127 n. 2. The plaintiff did not object as to the burden of proof on her on the issue of disability.
CONCLUSION
Based on Tevolini and Pellow, it is not unreasonable for this court to conclude that the burden of proof on the issue of the plaintiff's disability is on the plaintiff.
Mrs. Brown's 1990 injuries from her automobile accident included a fractured tailbone and damage to her knee and back. She testified she currently suffers from sciatica and Raynard's disease.
The testimony from both parties at trial was clear that she has not been treated for her accident injuries for many years and has not taken prescription medication to control symptoms or pain. Mrs. Brown introduced no medical records, expert testimony or evidence (other than her own testimony) to substantiate her claim she is unable to work full-time. In fact the uncontroverted evidence at trial demonstrates she leads an active lifestyle running 5 miles per day, gardening, performing housework and working part-time.
The issue before the court is which party bears the burden of proof the wife is physically unable to work full-time. The court finds the burden rests with the plaintiff and that she failed to meet that burden by a preponderance of the evidence.
FAULT
The defendant testified the cause of the breakdown of the marriage was the wife's alcohol consumption and her refusal to return to work full-time.
The Husband testified that his wife disguised her alcohol consumption by drinking beer from a coffee mug. He claimed his wife drank 4 days per week and also admitted he drank 3 times per week on average. The court did not consider either party to be more at fault for the dissolution of the marriage.
ORDERS
After considering all of the statutory criteria set forth in General Statute's § 46-84 as to support of a minor child, § 46b-215a-1, et seq., Regs. Conn. State Agencies as to child support, § 46b-62 as to counsel fees, § 46b-66a, as to conveyance of real property, § 46b-81, as to assignment of property and transfer of title, § 46b-82, as to the award of alimony, § 46b-84, as to medical insurance for minor child, § 46b-56c, as to Educational Support Orders together with applicable case law and the evidence presented here, the court hereby enters the following orders:
1. DISSOLUTION OF MARRIAGE:
A decree dissolving the marriage on the grounds of irretrievable breakdown shall enter on April 29, 2011.
2. CUSTODY/ACCESS:
The court finds that the agreement of the parties dated January 10, 2010, regarding a parenting plan, is in the best interests of the minor child and it is incorporated herein by reference.
3. CHILD SUPPORT:
The defendant shall pay to the plaintiff child support in the amount of $210 per week via immediate wage execution. Until the attachment is in effect the defendant shall pay the plaintiff directly. Child support shall continue until the youngest child, Justin, attains the age of majority, but if still in high school, then upon his high school graduation, but not beyond 19 years of age. Payment shall be made on the day the defendant receives his paycheck until the wage execution goes into effect.
The defendant shall contribute 53%, and the plaintiff 47%, toward the agreed upon extracurricular activity expenses of the minor child. Extracurricular activities shall be agreed upon in advance in writing before there is an obligation on either party to contribute to the cost.
An immediate wage withholding order shall enter.
4. ALIMONY: PERIODIC ALIMONY
The Defendant shall pay to the plaintiff alimony in the amount of three hundred ($300.00) dollars per week for a period of eight years from the date of judgment. Payment shall be made on the day the defendant receives his paycheck until the wage execution goes into effect.
An immediate wage withholding order shall enter.
Alimony shall be modifiable as to amount but not as to term Alimony shall terminate on the first to occur of any of the following events:
a. Eight years from the date of dissolution.
b. The death of either party.
c. The remarriage of the Plaintiff.
d. The Plaintiff's co-habitation with an unrelated person pursuant to Connecticut General Statutes, Section 46b-86b.
The plaintiff shall be permitted to earn gross income from employment of $15,000.00 per year without it being considered a substantial change of circumstances for a modification of alimony.
5. MEDICAL INSURANCE MINOR CHILDREN:
The defendant shall provide health insurance equivalent to existing coverage for the benefit of the children. The obligation to provide insurance coverage shall continue until each child attains the age of 23 years, so long as the child is qualified for such coverage under the medical plan and if after the age of 19 years, is attending an accredited college. Each party shall notify the other party in writing at the point when a child is no longer eligible for coverage and the date under which the coverage will terminate. If medical insurance is no longer available to the defendant at a reasonable cost as defined by the CT Child Support Guidelines the plaintiff shall provide medical insurance for the benefit of the children if available through her employer at a reasonable cost as defined by the CT Child Support Guidelines. If plaintiff does not have medical insurance available through her employer the parties shall apply for HUSKY medical insurance for the benefit of the children and divide the cost with the plaintiff paying 47% and defendant paying 53% of the cost.
6. UNREIMBURSED MEDICAL EXPENSES MINOR CHILD:
All unreimbursed medical, dental (including orthodontia), psychiatric/psychological, therapeutic, prescriptive, and optical expenses including insurance premiums and deductibles, incurred on behalf of the minor children, shall be paid 53% by the defendant and 47% by the plaintiff.
The obligation to contribute to unreimbursed expenses shall continue as to both parties until each child reaches the age of eighteen (18) years, but if he/she is a full time high school student, it shall continue until he/she completes the twelfth grade or attains the age of nineteen (19) years, whichever first occurs.
The provisions of Connecticut General Statute § 46b-84e shall apply as follows:
(1) The signature of the custodial parent of the insured dependent shall constitute a valid authorization to the insurer for the purposes of processing an insurance reimbursement payment to the provider of the medical services or to the custodial parent, (2) neither parent shall prevent or interfere with the timely processing of any insurance reimbursement claim and (3) if the parent receiving an insurance reimbursement payment is not the parent who is paying the bill for the services of the medical provider, the parent receiving such insurance reimbursement payment shall promptly pay to the parent paying such bill any insurance reimbursement for such services. The custodial parent shall be responsible for providing the insurer with a certified copy of the order of dissolution or other order requiring maintenance of insurance for a minor child. Such insurer may thereafter rely on such order and is not responsible for inquiring as to the legal sufficiency of the order. The custodial parent shall be responsible for providing the insurer with a certified copy of any order that materially alters the provision of the original order with respect to the maintenance of insurance for a minor child. If presented with an insurance reimbursement claim signed by the custodial parent, such insurer shall reimburse the provider of the medical services, if payment is to be made to such provider under the policy, or shall otherwise reimburse the custodial parent.
All claims shall be submitted to the insurer for payment in accordance with the requirements of the plan; however, the following shall control the handling of funds and claims between the parties:
Where the provider of services (hereinafter "Provider") is willing to await payment from the medical insurer, the defendant shall provide the plaintiff with appropriately executed forms for submission to the Provider and the insurance company within seven (7) calendar days of her request for such form or forms.
Where the Provider requires cash payment and the plaintiff or defendant makes such payment, the plaintiff/defendant shall reimburse the other in full for his/her portion of such amounts within seven (7) calendar days of written receipt of proof of such payment of a reimbursable medical expense as determined by the insurer. The plaintiff shall cooperate fully with the defendant in submitting any claim he may wish to make to the insurance company in order to obtain reimbursement.
The defendant and plaintiff shall pay the appropriate amount to the other within seven (7) calendar days of receipt by him/her of proof that such payment is due.
7. MEDICAL INSURANCE — SPOUSE:
The plaintiff is presently covered under the defendant's Group Medical Plan. At the plaintiff's option, she may continue the benefits provided she pays the cost.
All unreimbursed medical and dental expenses incurred by the plaintiff shall be her sole responsibility. All unreimbursed medical and dental expenses incurred by the defendant shall be his sole responsibility.
8. LIFE INSURANCE:
A. The defendant shall maintain and pay the premiums on his existing life insurance policy provided by his employer providing for a death benefit two times his annual salary. The defendant shall name the children the irrevocable beneficiaries of this policy.
The defendant shall pay all premiums, dues and assessments due thereon to be paid by him to maintain the insurance on his life and shall make arrangements for all premium notices and premium receipts to be sent to the plaintiff. He shall further sign an authorization permitting the plaintiff to have access to all information about the policy at any time.
In the event that the defendant fails to maintain said insurance at the time of the defendant's death and in the event the defendant has not made a bequest in his will to the plaintiff and children in an amount totaling two times his then present salary, as provided herein, then the shortfall or the full amount, as the case may be, shall constitute a charge upon the defendant's estate and an indebtedness of the estate of the defendant in favor of the children to the extent of the provisions of this decree.
The defendant shall furnish to the plaintiff, per her request, but no more than once annually, on the first business day in January, proof that he is insured in the specified amount and the beneficiaries are as required herein.
The defendant's obligation to name the children as equal beneficiaries life insurance shall endure until there is no further obligation for child support or college expenses for the youngest child, Justin.
B. SPOUSE
The defendant shall maintain a decreasing term life insurance policy insuring his life for at least one hundred thousand and 00/100 ($100,000.00) DOLLARS naming the plaintiff as the irrevocable beneficiary of the same for the term of his alimony payments. The death benefit may be reduced by fifteen thousand six hundred dollars ($15,600.00) per year. The defendant's obligation to name the plaintiff as beneficiary of life insurance shall endure for so long as he has an obligation to pay alimony.
The defendant shall pay all premiums and assessments due thereon that are required to be paid by him to maintain the insurance on his life and shall make arrangements for all premium notices and premium receipts to be sent to the plaintiff. He shall further sign an authorization permitting the plaintiff to have access to all information about the policy at any time. In the event that the defendant shall fail to pay any of said premiums, the plaintiff shall have the option to pay such premiums and the defendant shall be indebted to pay the plaintiff in the amount of the sums so paid.
In the event that said insurance shall not be maintained in effect at the time of the defendant's death and in the event the defendant has not made a bequest in his will to the plaintiff in the amount of his remaining alimony payments, then the shortfall or the full amount of, as the case may be, shall constitute a charge upon the defendant's estate and an indebtedness of the estate of the defendant in favor of the plaintiff to the extent of the provisions of this Article.
The defendant shall furnish to the plaintiff, per her request, but no more than once annually, on the first business day in January, proof that he is insured in the specified amount and the beneficiary is as required herein.
9. DEBTS:
The plaintiff shall assume and pay all of her liabilities shown on her financial affidavit dated January 10, 2011. The plaintiff shall indemnify and hold the defendant harmless from any liability whatsoever arising out of those debts.
The defendant shall assume and pay all of his liabilities shown on his financial affidavit dated January 11, 2011. The defendant shall indemnify and hold the plaintiff harmless from any liability whatsoever arising out of those debts.
10. EDUCATIONAL SUPPORT ORDER:
The Court shall retain jurisdiction to enter an education and support award for each child as of the time that each child enters college.
11. HOUSEHOLD FURNISHINGS AND PERSONAL PROPERTY:
The defendant shall be entitled to remove the following items from the family home within 30 days of the date of the dissolution:
Family Room: Couch, chair and a half with ottoman, wall entertainment center, curio cabinet and contents, coffee and end tables, lamps, television, DVD player, computer cabinet.
Garage: All tools, work bench, tree pruners and air compressor.
Jessica's Bedroom: Entire contents.
Deck: Patio set.
Master Bedroom: Reene Ndson's lamp.
12. REAL PROPERTY:
The parties were the joint owners of real property located in Wallingford, Connecticut, which was sold pendent lite the proceeds of which are being held in escrow.
The plaintiff shall be entitled to the first $75,000 of the net proceeds from the sale of the marital home in consideration of the down payment being composed of the proceeds of her personal injury settlement. The balance of the net proceeds shall be divided as follows: sixty percent (60%) to the plaintiff and forty percent (40%) to the defendant.
13. PENSION AND OTHER RETIREMENT:
A Qualified Domestic Relations Order shall enter, transferring to the plaintiff one-half of the defendant's pension benefit, accrued during the marriage, as of the date of dissolution, including any cost of living adjustments or pre-retirement death benefits that may be available on that share. The parties shall share the cost of drafting and preparing the QDRO with the plaintiff paying 47% and the defendant playing 53%. The QDRO shall be prepared within 45 days of the date of judgment.
The balance of the defendant's 401K Profit Sharing Plan shall be divided equally by way of a rollover transfer utilizing the balance as of the date of dissolution. The transfer shall be accomplished within 30 days from the date of judgment.
14. COUNSEL FEES:
Each of the parties shall be responsible for his or her respective professional fees incurred in connection with this litigation.
The defendant shall pay fifty-three (53%) percent, and the plaintiff forty-seven (47%) percent, of the outstanding fees due to the Guardian ad Litem. This sum shall be paid from the escrow proceeds directly by the escrow agent before any proceeds are paid to the parties.
15. DEPENDENCY EXEMPTIONS:
The plaintiff shall be entitled to claim the youngest child as a dependent for all tax reporting purposes. The defendant shall be entitled to claim the oldest as a dependant for all tax purposes. Each party shall sign any documentation necessary to effectuate this.
The plaintiff and defendant shall exchange copies of their federal and state income tax returns on April 1st of every year that child support and/or alimony are court ordered.
16. TAX FILING:
a. The parties shall file a joint Federal and State income tax returns for 2011 and equally share the cost of preparation. They shall equally divide any refund and any payment due the State or Federal Government.