Opinion
No. FA 07-4027507 S
August 14, 2009
MEMORANDUM OF DECISION
The plaintiff in this action is correct when she states, "this case looks complex but it is really a very simple case." The defendant is correct when he characterizes the plaintiff's demands as displays of "avarice and greed," making those demands "without any justification whatsoever and without contributing one cent financially to this marriage." However, the deliberate actions of these two adults resulted in the conception and birth of Lucas Edward Celentano, born May 26, 2005, and he requires the love, care, and support of both his parents.
The parties were married in Westerly, Rhode Island, on May 11, 2004. It was the first marriage for the plaintiff, and the second marriage for the defendant. As stated, they have one minor child, Lucas, who resides with the plaintiff in her rented home. The action was instituted by way of a complaint dated August 16, 2007, returnable to court on September 25, 2007, filed by the plaintiff on her own behalf. Her complaint alleges the grounds for the action as habitual intolerance and intolerable cruelty. The defendant filed a cross-complaint dated September 11, 2007, on the ground of irretrievable breakdown. The matter has been pending for almost two years, there are more than 120 pleadings filed, and the court heard the trial over a five-day period. Forty-two exhibits were offered into evidence by the plaintiff and twenty-six exhibits were offered by the defendant. The parties expended tens of thousands of dollars in counsel fees and expert fees, for what amounts to about a two-year marriage, fueled by the plaintiff's unrealistic and unjustified claims for relief in a case her own counsel characterizes as "very simple."
The plaintiff is an attorney admitted to practice in Connecticut.
I. FINDINGS OF FACT
The plaintiff is thirty-eight years of age, and a practicing attorney in Connecticut, who has worked for several firms in the past, and is currently in her own practice. She has earned salaries on the average of $50,000 annually, plus bonuses and percentage of the business that she generated. While a solo practitioner, she provided legal counsel to the defendant, who paid her over $51,000 in legal fees for the period June 2003, through April 2004, prior to the marriage. During a period of time during the marriage, she stopped practicing, and is now attempting to reestablish herself in the legal community. She has the ability to earn approximately $50,000 based upon her past experience, and the court will find that she has an earning capacity of $50,000 per year.
The defendant is seventy-six years old with significant health issues. He has been diagnosed with stomach cancer and had a total gastectomy approximately twenty years ago. He has been diagnosed with colon cancer twice, bladder cancer, cataracts in both eyes, back problems, and had a knee replacement five years ago. He anticipates having the other knee replaced soon, and presently suffers from depression. In March 2006, he was hospitalized with double kidney failure. For all of his various health problems, he takes approximately ten medications per day, including steroids, for pain, sleep, arthritis, and depression.
The defendant's primary occupation is owner and operator of Chick's Drive-In Restaurant in West Haven. He and his father began the business in the 1950s where they would sell hot dogs and hamburgers out of their garage to traffic waiting in line to arrive at what was formerly an amusement park. After spending approximately four years in the United States Navy during the Korean conflict, the defendant returned home to continue to work at the business. Over the years, he has developed the business into a full fast food restaurant, selling primarily fried seafood, hot dogs and hamburgers. Through his extreme hard work ethic, working seven days a week and nearly every day of the year, and obvious business acumen, he has amassed over seven million dollars in assets over the past fifty years. His restaurant, as well as some of his assets, have suffered due to the existing economy, and he manages to keep business and his other assets afloat by "borrowing from Peter to pay Paul."
One of the plaintiff's experts likened him to Warren Buffett. Though they may be approximately the same age, his assets do not come close to the assets of the "Oracle of Omaha."
The defendant has two sons from a prior marriage, and each has experienced bouts with cancer. He also pays $600 per week in alimony to his former wife to whom he was married for over thirty years.
The defendant's financial affidavit shows several sources of income. He collects social security in the gross monthly amount of $1,380. The majority of his income is derived from dividends and interest from two sources, the Way Up Trust from which he receives approximately $9,000 in gross monthly interest income, and Chauncey Street, LLC, from which he receives $15,839 in dividend income and tax-exempt interest. His total monthly gross income, including the social security benefits, is $26,878. According to the defendant, Chick's Drive-In Restaurant suffers significant losses each month, and he funds the restaurant approximately $13,000 per month in order to keep it afloat. He also has approximately $18,000 in rental property losses and other expenses from his nineteen limited liability companies. He shows a total of $35,489 per month in total monthly deductions, resulting in a net monthly loss of $8,611. The court is unable to verify the losses incurred for his property rentals, and there was no evidence as to which of these deductions were cash items or which were non-cash items such as depreciation. Therefore, the court finds a net monthly income of $9,602.
The plaintiff claims that the defendant has significant unreported cash income from the restaurant. She retained an expert, Nancy Riella, to evaluate the business, and prior to any examination of the books and records, Riella went in with the admitted mind set that all owners of cash businesses do not report all of their income. She stated this is her experience, and she believes it. She made the allegation that the defendant failed to report income of over $400,000 during the tax year of 2008, which would amount to over $30,000 per month of unreported income. While the defendant may or may not have reported all of this cash receipts, no credible evidence was provided to the court to verify this belief. Perhaps there is the perception held by many people that not all cash is reported in a cash business, but the court is required to base its determination on proven facts and evidence or on reasonable inferences that can be drawn therefrom, not mere speculation. Ms. Riella cited three reasons for her opinion. First, his income did not equal industry standards for a restaurant of that size. Second, she made reference to an obscure newspaper article claiming that the defendant's son was quoted as saying on a good day, the business served between 3,000 and 3,500 customers. The third reason was based upon her review of the register receipts with bank deposits at the end of the day. She failed to take into account the competition, weather factors, size of the restaurant, economic recession, or increases in business costs, and made serious errors in her calculations and facts. She conceded some of her errors, and admitted that the defendant, his bookkeeper, his employees and his accountant gave her free rein to examine the business and the records.
The article appeared in The Day newspaper in June 2008, and was submitted as part of Riella's report. (Plaintiff's Exh. 57.) This would amount to approximately 450 customers per hour on an eight-hour day. This seems almost as improbable as the defendant earning an additional $400,000 in unreported cash income.
The defendant's expert, John Kramer, concluded that the operation has been losing money for the past several years, and found no evidence of any unreported income. (Defendant's Exh. F.)
The plaintiff has very few assets. She lists miscellaneous personal property and jewelry in the amount of $80,000, and which includes the engagement ring that the defendant purchased for her with a value of between $75,000 and $100,000. She has a small IRA in the amount of $1,146, fractional interests in some of the defendant's LLCs, and her law office, which she indicates has a nominal value. The Mercedes, with a current value of approximately $13,000, was also purchased for her by the defendant. Her liabilities total $106,229, of which approximately $82,000 are directly related to the costs of the dissolution action for legal fees, expert fees, and costs.
The defendant has already paid either voluntarily or by court order over $40,000 for the plaintiff's counsel fees and experts.
The defendant has had virtually all of the assets he presently owns prior to the marriage, and, as he points out, some of which he owned prior to the plaintiff's birth. He has an obsession with the late comedian and actor, Jackie Gleason. Not only does he currently own Gleason's former home in Lauderhill, Florida, with Gleason memorabilia, but his LLCs are in some way connected with the late comedian — Chauncey Street, Trixie Norton, To The Moon, Some Day Alice, One Up Investments, Alice Trixies, Honeymooners, An Away We Go, The Hustler, etc. Gleason's former home in Lauderhill, Florida, is 10,000 square feet, and is zoned as three condominiums, and taxed as such. The defendant values the property at $300,000, including Gleason's personal effects. The court was not given any appraisal or contradicting evidence as to the value of the real estate or the memorabilia.
One of those items is Gleason's pool table.
The defendant also owns has a fifty percent interest in property at 1795 Paradise Avenue, Hamden, with a value of $175,000, and a 57.5 percent interest in property at Old Conch Highway, Hamden, with a value of $175,000. Both of these properties are held in his name. He resides in property located at 2 Old Town Highway, Unit 25, East Haven, Connecticut, (Shell Beach) which is a condominium, and which he has owned for the last twenty years, under the LLC known as Alice Trixies. The parties stipulated to a value of the property of $442,500.
As stated earlier, a large portion of the defendant's assets are invested in tax exempt bonds, and held by Chauncey Street, LLC. These include the Smith-Barney accounts with a balance as of March 2009, of $2,881,949 (Defendant's Exh. B); the Janey Montgomery Scott account with a value as of March 2009, of $161,925 (Defendant's Exh. D; and the Wachovia account with a balance of as March 2009, of $307,874 (Defendant's Exh. C), which total $3,351,748.
The parties stipulated to the value of three other assets owned by the defendant. Trixie Norton, LLC, which consists of thirteen condominiums in West Haven valued at $170,000 each, for a gross value of $2,210,00, less commission expenses and liabilities of $266,250, leaving a net value of $1,811,150; Foxon Hill Associates, of which the defendant owns 57.5 percent interest with a value of $603,750; and An Away We Go, LLC, which is property located at Elm Street, New Haven, Connecticut, with a value of $467,500. There are three LLCs which consist of various parcels of land which have no value due to zoning issues and environmental issues, those are: To The Moon, LLC, which consists of eight acres of land in East Haven; Some Day Alice, LLC, 1020 Orange Avenue, West Haven; and Um That Tastes Good, LLC which is 97 Beach Street, West Haven, Connecticut.
The parties offered conflicting values on two LLCs: Three Up Investments, LLC, and Honeymooners, LLC. Three Up Investments, LLC, consists of property located at 1 Cellini Place, Chester Place and Admiral Street, West Haven. The plaintiff's expert utilized a sales comparison approach, and valued the property at $425,000, while the defendant's expert utilized a sales comparison as well as an income approach, and valued the property at $362,000. The court accepts the value of the defendant's expert at $362,000. The plaintiff's expert valued the property held by Honeymooners, LLC, at $725,000, again utilizing a sales comparison approach. The defendant's expert also utilized the sales comparison approach, however valued the property at $493,000. The court accepts the value of the defendant's expert of $493,000.
The defendant listed three other LLCs, and the court accepts the values as indicated on his financial affidavit as there was no contradicting evidence of their value. They are: One Up Investments, consisting of property located at 634 Orange Avenue, West Haven, with a value of $150,000; The Hustler, LLC, consisting of property, with a value of $100,000; and Zoom Boom, LLC, consisting of property located at Orange Avenue, West Haven, Connecticut, with a value of $90,000.
The only other LLC owned by the defendant is the Always Up, LLC, presumably not named after any Jackie Gleason proverb, which he indicates has a zero value. It is necessary to provide some background for this investment. The plaintiff's family has an interest in a water company, Walden Springs Water Company, with her brother handling the day-to-day operations. During the marriage, she approached the defendant and suggested that he invest in the water company. He set up the Always Up, LLC, and invested $200,000 in the Walden Springs, made a loan to it of $72,000, and leased a piece of property to the water company. There was an agreement to make interest payments of $600 per month to the defendant, and the rental was to be approximately $900 per month. After the filing of the first dissolution action by the plaintiff, Walden Springs stopped making any further payments on the note and the lease. He attempted to sue Walden Springs to force them to pay the interest on the note, back rent and taxes that were owed to him, but the plaintiff refused to give her permission to sue the water company for payment. He shows no value of the Always Up, LLC.
The plaintiff testified that the company was owned by her family and "some non-family investors." That is correct, although her family owns a 98 percent share, while the "non-family investors" own a 2 percent share.
After totaling all of the values of the LLCs, the defendant shows a debit of $450,000 for estimated income tax due upon the sale of the properties. The court declines to address this, and credits the values as indicated herein.
A large dispute deals with the valuation of Chick's Drive-in Restaurant. The plaintiff's expert, Riella, valued the business at $721,000. She employed extensive analysis of the business, however, she neglected to take into account certain important aspects, and made several errors concerning the number of parking spaces, the amount of square footage, testified that the income generated from the business did not affect the value of the overall business, did not take into account any expenses for capital replacement, and based a great deal of her opinion on speculation rather than actual factual evidence. The defendant's expert rejected the analysis of Riella, stating he was not retained to perform a forensic audit but a valuation of the business. He followed the standards for valuation, and employed three approaches to the valuation: income approach, market approach, and cost approach. He arrived at a value of the business of $76,000. (Defendant's Exh. P.) The court rejects both valuations, and finds there is not sufficient credible evidence from which the court could find a value. Assuming some valuation closer to the defendant's expert's value is correct, in light of the other substantial assets and facts relevant to the resolution of this case, it is not necessary for the court to find a value for Chick's Drive-In Restaurant. See Bornemann v. Bornemann, 245 Conn. 508, 531, 752 A.2d 978 (1998); Puris v. Puris, 30 Conn.App. 443, 449, 620 A.2d 829 (1993).
Her report actually indicates a value of $991,000, but under cross-examination, she admitted she had made a mathematical error. (Plaintiff's Exh. 57.)
In addition to these assets, the defendant is the beneficiary of income of the Way Up Trust, established February 27, 1997. The principal of the trust was furnished one hundred percent by the defendant from the sale of property referred to as Lawrence Mall, in December 2006, for $1.95 million, about the same time the parties reconciled after the first dissolution action was brought by the plaintiff. The Way Up Trust also produces tax exempt interest from an account with Smith Barney, with a principal value as of December 31, 2008, of $1.2 million.
The court allowed the plaintiff's expert to offer evidence as to the value of the property that remains as Lawrence Mall, who indicated a value of $680,000. He failed, however, to take into account any of the environmental issues and the court credits the defendant's expert, and finds a value of the property of $262,000.
There are two other trusts of which the defendant has an interest. The first is The Rae E. Celentano Charitable Trust, established in February 1997, from which the defendant is entitled to the net income and eight percent of the principal. (Plaintiff's Exh. 26.) He is unsure of the assets of the trust, and there was no evidence to indicate he is receiving any income from the trust at this time. The second trust is Joseph E. Celentano Trust, established by the defendant on March 6, 1997, and amended three times, the last time August 15, 2007. Pursuant to this trust, at the time of the defendant's death, after several small designated distributions, the remainder of the trust property shall be divided in equal shares and distributed to each of the defendant's sons: his two adult sons, Joseph and Michael, and an equal share to Lucas, to be held in trust for his benefit. The trustee is directed to pay the net income and any principal as the trustee deems advisable for Lucas' health, maintenance, support and educational expenses, and principal is to be distributed to Lucas in installments when he reaches 45, 50 and 55 years of age. The court did not have evidence about the corpus of the trust, although there was some indication that the life insurance policy discussed below is to be paid to a "trust" at the defendant's death.
The defendant receives some annual distributions from three insurance polices, Manulife — $3,118; Met Life — $756; and Jackson National Life — $811. He also has a life insurance policy with Northwestern Mutual with a net death benefit as of August 17, 2008, of $52,971.86. (Plaintiff's Exh. 38.) He took out the policy in 1977, and it has a total death benefit of $185,000 but the statement shows a loan in the amount of $131,994, as of August 2008. The defendant testified that the beneficiary of the policy is the Joseph B. Celentano Family Trust, but there was no evidence to establish this for certain.
The parties met when the plaintiff was working as a law clerk for a firm that was doing legal work for the defendant. They began to see each other socially, and most likely the defendant, some forty years older than the plaintiff, enjoyed the attention from this attractive young woman. She, on the other hand, found him charming, and had extensive knowledge of his financial worth due to her work on his legal matters. After they married, they discussed having a family, and the defendant was quite surprised when the plaintiff became pregnant, due to his extensive health issues, especially all of his cancer diagnoses. After they married, she moved into the condo he had owned for some twenty years, and began an extensive remodeling project, at, of course, his expense. She moved her legal office to the second floor of the restaurant, and the defendant spent thousands of dollars to remodel that space to accommodate her office. He enjoyed this arrangement, as he goes into work every day, and they were together most of the time.
The plaintiff testified that after Lucas was born in 2005, things began to change, and the defendant became suspicious of her comings and goings, as well as providing no support for the child care. The defendant claims that the marriage broke down after he became extremely ill in March 2006, with a serious bout of the flu. He was hospitalized, and experienced kidney failure. It is his belief that he was poisoned by the plaintiff with antifreeze, and although he provided no medical evidence, he testified that the doctor told him he was poisoned, but the doctor could not prove it. After his release from the hospital he never ate or drank in the house again. He never saw any member of her family after that, and she filed for divorce three weeks later. Shortly thereafter, she told the defendant that if he transferred to her four of his major assets — including Chick's Restaurant — she would withdraw the action. He declined to make the transfer, and she went forward with the divorce. They eventually reconciled in December 2006, at which time the defendant paid the plaintiff's attorneys fees of approximately $12,000, and paid off her credit cards of approximately $28,000. Things did not improve, and this action was commenced in August 2007. At that time, the plaintiff obtained an ex-parte restraining order alleging domestic violence, and he was ordered to vacate the family home. When he was served with that ex parte order, he was 75 years of age, and had lived in that home for over twenty years. The restraining order was dissolved at the preliminary hearing, and the defendant was allowed to return to his home.
The court entered pendente lite orders on February 8, 2008, after five days of hearing, ordering the defendant to pay to the plaintiff $1,000 per week as alimony to commence once she vacated the family home, as well as ordering him to pay $10,000 in moving costs, continuing to pay her medical and auto insurance, and counsel fees in the amount of $10,000. (Burke, J.) In addition, the court ordered child support to be paid of $256 per week, and two-thirds of the day care costs and unreiumbursed medical and dental expenses.
The child support figure was based upon a gross income for the plaintiff of $423 per week and a gross income for the defendant of $5,714 per week, and also took into account the social security payment on behalf of the minor child in the amount of $184 per week. Based upon these figures, the presumptive child support amount in accordance with the Child Support Guidelines is $256 per week.
The court heard little testimony about the marriage or their relationship during the marriage, other than the fact that the defendant worked daily at his restaurant. Neither party discussed any parts of the marriage that they enjoyed or will miss, and perhaps that is due to the protracted dissolution action and everything that has entailed. There was no evidence presented to the court of any nonmonetary contributions made to the marriage by the plaintiff, or any evidence that those contributions resulted in the acquisition, preservation or maintenance of the defendant's assets — all of which were acquired long before the marriage. On the contrary, her behavior and actions during the marriage had the opposite effect of any preservation or maintenance. The plaintiff was anything but the "homemaker spouse." See, O'Neill v. O'Neill, 13 Conn.App. 300, 536 A.2d 978 (1988) The defendant during the course of this short marriage has made the following expenditures on behalf of, or on account of, the plaintiff:
One "asset" acquired during the marriage was Always Up, LLC, which unfortunately holds the "investment" the defendant made to the plaintiff's family's water company as well as the promissory note held by the defendant, which it is doubtful he will ever collect.
In O'Neill, the court directed that consideration should be given to (1) whether any of the wife's alleged non-monetary contributions to the family during the marriage made it possible for the husband to acquire or retain property, and (2) whether the wife's alleged non-monetary contributions to the family during the marriage had the effect of preserving the value of already acquired property or appreciating the value of already acquired property. Id., 308. In the instant case, the court cannot find either of the factors.
While is does not necessarily follow that a party should receive a "dollar for dollar" credit for the monetary contributions made during the marriage, these contributions are set forth to demonstrate the benefit that the plaintiff has received from the defendant during the marriage.
Pay off of student loan in December 2004, of approximately $121,000 (Defendant's Exh. E).
Investment in the plaintiff's family business of over $272,000, plus interest and rental payments that were obligated to be paid to him, but stopped once the dissolution was filed.
New Mercedes for approximately $53,000.
Pay off of car loan of approximately $18,000.
Engagement ring, jewelry and clothing gifts totaling approximately $100,000 (Defendant's Exh. C.)
Remodeling office space to accommodate the plaintiff's law practice for approximately $60,000.
Pay off of her credit cards for approximately $112,000.
Litigation costs for the two divorce actions totaling approximately $48,000.
Likewise the court heard little testimony about Lucas, and had no sense of any relationship or bond between the defendant and his son. In fact, he referred to him as "that boy," clearly not a term of endearment. Of course, this may be in large part due, again, to the plaintiff's actions particularly during the pick-ups and drop-offs, when the scenes she caused at the restaurant were so unbearable that the defendant opted to forego seeing his son rather than deal with the plaintiff, and witness his son's obvious distress. Her poor choice of language in front of customers and employees was something he referred to as "disgusting." Further, she sought police intervention so many times that the police finally told her to stop calling. The plaintiff has taken Lucas to a therapist without the defendant's input, but there was no evidence as to why this is necessary or why she sought the treatment.
The credibility of the plaintiff a member of the bar, is deeply troublesome. She made clear misrepresentations to the court during her testimony. She misrepresented her ownership interest in various LLCs that the defendant owned prior to the marriage, testifying that she originally owned 50 percent of the assets and offered a 2005 tax return to support her claim. (Plaintiff's Exh. 6.) However, the defendant's accountant testified that he amended the returns for 2005 once he realized that her share was actually one-half of one percent. (Defendant Exh. X.) She was provided with copies of the amended returns as part of the discovery, yet she offered into evidence the original returns containing the erroneous percentages of the LLCs. Most troubling was the plaintiff's, a member of the bar, obvious lies during her September 16, 2008, deposition during which time she was asked if she had dated any person other than the defendant since the date of the marriage. She answered "no." She was asked if she had sexual relations with a person other than the defendant during the course of the marriage. She again answered "no." Introduced into evidence by the defendant were telephone bills evidencing her conversations with Terrence Noyes every day from August 24, 2008, through September 16, 2008. (Defendant's Exh. T.) A photograph was introduced showing her with Noyes at a concert in late August 2008. (Defendant's Exh. U.)
In addition, Noyes himself testified, credibly. He signed a statement with the defendant's retained private investigator in November 2008, in which he stated their first date was August 23, 2008, and their first sexual relation was the first week of September, "either September 1st or 2nd." (Defendant's Exh. V.). He testified that they had sexual relations the night before her deposition. The plaintiff told Noyes that he could never tell anyone about their relationship, and to always say they are "just friends." Then on October 22, 2008, the plaintiff abruptly ended the relationship. Noyes testified that he was devastated, and he called and e-mailed her. He told her that he was going to tell the truth about their relationship and not lie. After several other attempts to notify her, Noyes was contacted by the police, who came to his place of employment. He was arrested for harassment in February 2009, months after he signed the statement acknowledging the affair.
There was testimony from both the defendant and his bookkeeper, Harriet Tamini, that during the marriage, the plaintiff, a member of the bar, and her father, came into the restaurant with a bag of cash containing approximately $10,000 asking the defendant to take it and give them a check. Her conduct is offensive, calling the defendant's 74-year-old bookkeeper a f___ing, J___, c___.
The plaintiff, although alleging in her complaint habitual intemperance and intolerable cruelty, provided the court with no credible evidence as to either of these allegations. The defendant testified that he cannot drink to excess, since he does not have a stomach, and although there may have been instances when he said inappropriate things to her, the evidence showed they were substantially made once the action had commenced, and there is no doubt they were fueled by her behavior.
For the brief, what amounts to a two-year marriage, the plaintiff is asking the court to transfer to her the condominium, which has been owned and lived in by the defendant for over twenty years, worth approximately $442,500, as well as transferring all of the brokerage accounts held with Smith-Barney, Janey Montgomery Scoot, and Wachovia — valued at $3,351,748 — to be held by her in trust, naming her as the trustee for the benefit of the minor child to be used for his health, education, and welfare. She asks that the trust be established in lieu of requesting educational support and life insurance, naming the minor child as the beneficiary.[fn14] She is not, however, asking that this trust be formed in order to serve as security for any educational support order, but requesting that these funds be held for Lucas' benefit, with the plaintiff having control as the named trustee.
The court was not informed as to any details of this "trust," for example, how the income would be distributed, when and if the principal would be distributed, etc.
The court cannot find any authority to make such an order. The plaintiff cites two cases, Valante v. Valante, 180 Conn. 528, 429 A.2d 964 (1980), and Sander v. Sander, 96 Conn.App. 102, 899 A.2d 670 (2006), as authority for the court to make this order, however, neither case addresses the issue here. In Valante, an order was entered that certain personal property would remain available for use by the children. "The court did not order that personal property be assigned to the children as the defendant claims, but rather it merely determined that certain property would remain available for their use. Such an order falls within the ambit of § 46b-56 and § 46b-84. Id., 532.
In Sander v. Sander, supra, 96 Conn.App. 102, an educational support trust was created at the time of the dissolution, and proceeds from the sale of certain real property were to be used to fund the trust. The court held that this was permissible since General Statutes § 46b-84(f) relating to a parent's obligation for maintenance of a minor child provides in relevant part that "[t]he court shall make and enforce the decree for the maintenance of the child as it considers just, and may direct security to be given therefore . . ." "As a court may enforce these support orders by requiring that security be given, a court similarly may enforce an educational support order by requiring that security be given." Id., 121. The court concluded that it was permissible to establish a trust to hold the parties' money for the express purpose of their child's college education pursuant to 46b-56(c). It noted, however, that "the funds in the trust remain an asset of each of the parties, until it is used for the express purpose of their child's education pursuant to General Statutes § 46b-56c or the excess is divided equally between them . . . It is possible, therefore, that the amount needed to fund the child's education would be less than that held in trust or even nothing at all." Id., fn.18.
This request to transfer over $3 million "into a trust, naming the mother as the Trustee" seems nothing more than a veiled attempt to make a statutorily prohibited assignment of property. In Wolf v. Wolf, 39 Conn.App. 162, 664 A.2d 315 (1995), the trial court designated a stock account as the children's property in trust for educational expenses. When each child reached the age of 18, the monies would be distributed to the child. "Section 46b-81(a) empowers the trial court in a dissolution action to assign any part of the marital estate to either of the parties, and explicitly authorizes the trial court to pass title to real property to either party or to a third person. There is no such authorization concerning the disposition of other forms of marital property . . . We find no ambiguity in the language of § 46b-81(a). Accordingly, we interpret the statute to mean that marital property other than real property can be assigned only to the parties to the marriage. Therefore, an award of marital property to the children of the marriage is beyond the authority of the trial court." Id., 170.
II FURTHER FINDINGS AND ORDERS
The court, having heard the testimony of both parties, and having considered the evidence presented at the trial, as well as the factors enumerated in General Statutes §§ 46b-56, 46b-56c, 46b-81, 46b-82, 46b-84, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes further findings and issues the following orders.
A. Dissolution of marriage.
The court has jurisdiction in this matter, the allegations of the cross-complaint are proven and are true, specifically that the marriage has broken down irretrievably. During the marriage, neither party has received any aid or assistance from the State of Connecticut or any town or political subdivision thereof. The marriage is hereby dissolved, and they are each hereby declared to be single and unmarried.
B. Alimony.
Considering the factors as set forth in General Statutes § 46b-82, as applied to the facts of this case, an award of alimony is appropriate. Because of the facts and circumstances of this case, the court shall award lump sum alimony. Basile v. Basile, 185 Conn. 141, 440 A.2d 876 (1981). The defendant shall pay to the plaintiff non-modifiable, non-taxable lump sum alimony in the amount of $50,000, payable within thirty (30) days of this memorandum. It is the intention of the court that this award is made pursuant to General Statutes § 46b-82, and is in the nature of support, and the obligation to make the payments shall not be stayed in the event of any appeal.
B. Custody and Child Support.
1. Custody. The parties shall share joint legal custody of the minor child, Lucas Edward Celentano, born May 26, 2005, primary residence with the plaintiff. Since neither party submitted a proposed parenting plan or proposed access schedule, the court orders reasonable access with the defendant, including alternating major holidays. The parties shall consult on all major areas of the minor child's life, including, but not limited to health, education, childcare, residence and general welfare. In the event the parties cannot agree, the plaintiff shall have final decision making authority. The plaintiff shall inform the defendant of all medical, dental and medical health treating physicians, and therapists, and any regular caretakers. She shall also list the defendant as a contact with medical providers and school officials.
The plaintiff shall not enter the premises known as Chick's Drive-in Restaurant at either drop-offs or pick-ups. The defendant shall provide a third party to meet the minor child at the drop-offs or pick-ups.
2. Child Support. The combined net weekly income of the parties is $3,470, based upon the court's finding of an earning capacity of the plaintiff of $50,000 and a net weekly income of the defendant of $2,701. The presumptive minimum basic child support is $438 per week, and the defendant's share is $158. Commencing August 21, 2009, and weekly thereafter, the defendant shall pay to the defendant the sum of $250 as and for child support, until such time as the minor child shall reach the age of eighteen years or shall be otherwise emancipated. The court enters a deviation based upon the substantial assets of the defendant.16 The foregoing notwithstanding, if the minor child turns eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of the next month following graduation from high school or his nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b).
The court further orders that the social security benefit received on behalf of the minor child be directly deposited into the plaintiff's account to be used as additional support for the minor child.
3. Child care and medical insurance expenses. The defendant shall maintain and pay for health insurance for the minor child so long as he is obligated to pay child support for that child. Unreimbursed medical, dental, orthodontic, optical, pharmaceutical, psychiatric, and psychological expenses for the minor child shall be divided by the parties, sixty (60) percent by the defendant, and forty (40) percent by the plaintiff.
4. Post-majority educational support. The court shall reserve jurisdiction pursuant to General Statutes § 46b-56c to enter appropriate educational support orders.
C. Property Division
1. Marital Residence. The defendant shall retain the residence, known as 3425 Willow Wood Road, Lauderhill, Florida, free and clear of any claims by the plaintiff, and subject to any existing taxes and other indebtedness, for which the defendant is wholly liable.
2. Other real estate. The defendant shall retain his interest in 1795 Paradise Avenue, Hamden, Connecticut, and Old Conch Highway, Hamden, Connecticut, as shown on his financial affidavit, free and clear of any claims by the plaintiff.
3. Automobiles. The plaintiff shall retain her 2005 Mercedes SUV motor vehicle free and clear of any claim by the defendant. The defendant shall retain his 2007 Mercedes E350 motor vehicle, free and clear of any claim by the plaintiff.
4. Hank/Brokerage/Retirement Accounts. Each party shall be entitled to keep their respective bank, brokerage, and retirement accounts, free and clear of any claims by the other. The plaintiff shall retain her interest in her American Funds Retirement account, free and clear or any claim by the defendant.
5. LLCs. The defendant shall retain all of his business interests listed as LLCs on his financial affidavit free and clear of any claim by the plaintiff. She shall convey to the defendant any interest she has in any and all of the defendant's LLCs, and shall have no claim against any one of them. The defendant shall prepare the transfer papers, and deliver them to the plaintiff, and she shall sign and return them within ten business days of her receipt.
6. Trusts. The defendant is the settlor of two irrevocable trusts, The Way Up Trust, and The Rae E. Celentano Charitable Trust. He shall retain any and all income and benefits associated with them, free and clear of any claim by the plaintiff.
The defendant is the settlor of one revocable trust. He shall retain any and all income and benefits associated with it, free and clear of any claim by the plaintiff.
7. Chick's Drive-In Restaurant. The defendant shall retain all of his business interests in Chick's Drive-In Restaurant, free and clear of any claim by the plaintiff.
He shall also retain his interest in commercial land known as Celavon Associates, of which one-third is a subsidiary owned by Chick's Drive-In Restaurant, free and clear of any claim by the plaintiff.
8. Personal Property. The plaintiff shall retain the engagement ring purchased for her during the marriage, as well as the diamond stud earrings, blue stone ring, wedding ring and fur coat, free and clear of any claim by the defendant. The defendant shall give to the plaintiff the picture of the lighthouse, the New Orleans picture, and the picture of children near car. All other items located at the Shell Beach Condominium in East Haven, Connecticut, shall remain the property of the defendant, free and clear of any claim by the plaintiff.
9. Condominium. The defendant shall designate four condominiums within thirty (30) days, presently held by Trixie Norton, LLC, and located in West Haven, Connecticut. The plaintiff shall have her choice of one of the condominiums from the four designated by the defendant, and the defendant shall transfer to the plaintiff all right, title and interest to said condominium, free and clear of any mortgage or liens. Further, any real estate taxes due on said unit, or any common charges due on said unit, shall be current at the time of the transfer.
In the alternative, if the plaintiff chooses not to accept one of the condominiums, the defendant shall pay to the plaintiff the sum of One Hundred Fifty thousand ($150,000), within thirty (30) days of her notification that she is declining the condominium.
D. Legal fees and costs.
Pursuant to General Statutes § 46b-62, the court has discretion to award counsel fees to a party in a dissolution action in accordance with their respective financial abilities. Further, "[i]n determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such award should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees." (Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988). Maguire v. Maguire, 222 Conn. 32, 43, 608 A.2d 79 (1992).
In applying the statutory criteria, and finding that an award of counsel fees is necessary in order to avoid undermining the court's other financial awards, the defendant shall pay as counsel fees to the plaintiff's counsel the sum of $10,000, within thirty (30) days of this memorandum.
The plaintiff shall be responsible for all other fees and costs incurred by her in connection with this action. The defendant shall be responsible for all fees and costs incurred by him in this action.
E. Medical insurance and expenses.
Each party shall be responsible for obtaining his or her own medical insurance and shall pay the cost related thereto. Each party shall be solely responsible for any uninsured and/or unreimbursed medical and dental expenses incurred by him or her.
F. Liabilities.
1. Taxes due the City of West Haven. The defendant shall be solely responsible for any taxes due in connection with any of his business entities, and shall hold the plaintiff harmless and indemnify her from any liabilities related to said taxes.
2. Debts shown on financial affidavits. Each party shall be responsible for the liabilities in their respective names as shown on their respective financial affidavits, and shall indemnify and hold each other harmless from any further liability thereon.
3. Environmental liabilities. The defendant shall be solely responsible for any environmental liabilities due in connection with any of the business entities. The defendant shall hold the plaintiff harmless and indemnify her for any liabilities related to said environmental clean-up.
G. Life Insurance. CT Page 14002
The defendant shall maintain the existing life insurance policy with Northwestern Mutual in the amount of $185,000, and shall name the minor child as beneficiary thereof for so long as he has an obligation to pay child support (including an educational support order) for the benefit of the minor child. He shall make provisions to pay any outstanding loan against said policy so that the death benefit will be $185,000. Said life insurance shall be deemed security for the child support obligation.
H. Miscellaneous.
1. The plaintiff shall retain her interest in the Law Offices of Jennifer M. Celentano, LLC, and any interest she may have in Walden Springs, LLC.
2. The defendant shall have the plaintiff's personal files that are currently in a storage container on the defendant's property located at 183 Beach Street, West Haven, Connecticut, available for pick-up by the plaintiff within 30 days of this order. He shall have the boxes delivered to the plaintiff's counsel's law office.
3. The defendant shall retain any settlements or awards received by him for the actions entitled Joseph Celentano v. Gregory Allen, and Jennifer and Joseph Celentano v. the Hills of Inverrary, free and clear of any claim by the plaintiff.
4. The defendant shall be entitled to claim the minor child as an exemption for federal and state income tax purposes until such time as the plaintiff is earning a minimum of $25,000, at which time, the plaintiff shall be entitled to claim the minor child as an exemption.