Opinion
No. FA-01-0182347 S
October 19, 2004
MEMORANDUM OF DECISION
In this action, the plaintiff, Alexis Curtis (born September 5, 1957) and the defendant Joseph Curtis (born January 7, 1957) seek a dissolution of their marriage which took place in New York on August 9, 1980. The parties have four children issue of the marriage, to wit: Gordon William, born August 27, 1988; Douglas Alender, born May 16, 1990; Courtney Ann, born June 10, 1992; and Emily Theresa, born September 8, 1994.
This action was commenced in the Judicial District of Stamford/Norwalk in February 2001. The case was eventually transferred to the Regional Family Trial Docket (complex family litigation) at Middletown. Indeed, this is a very contentious case. For example, while the court was hearing evidence in this matter, it was necessary to order that the defendant be restrained and prohibited from entering the marital home. The parties share custody of their minor children in a manner that minimizes contact between them. Specifically, the visitation order provides for the exchange of the children at school or at a public place.
Because the file is voluminous and in all probability there wilt be postjudgment motions, the file will be kept in the clerk's office for the Judicial District of New Haven.
There is one truism in this case and that is there has been an irretrievable break down of this marriage. Accordingly, the court dissolves the marriage between the plaintiff and the defendant on that ground.
The court finds that both the plaintiff and the defendant have resided continuously in Connecticut for more than one year prior to the filing of the compliant and that all statutory stays have expired.
Much to the credit of the parties and with the guidance of the guardian ad litem, attorney Sheila K. Rosenstein, the parties have agreed on joint custody of the minor children and a detailed parenting plan dated September 9, 2003. The court finds that joint custody and the parenting plan of September 9, 2003 to be in the best interests of the children. Accordingly, the court grants the plaintiff and defendant joint custody of the minor children and orders the parenting plan dated September 9, 2003 be incorporated by reference into this decree. General Statutes § 46b-56. The parties also have agreed that Dr. Wolk shall be the parenting counselor.
The plaintiff and the defendant are highly educated and intelligent persons. The plaintiff works one day a week as neonatal intensive care nurse at the Norwalk Hospital earning approximately $16,000 per year. She also is a Lamaze child birth instructor earning approximately $7,000 per year. The defendant is employed in the technology department of a financial company and earns $155,000 per year. He usually receives a bonus in the amount of $30,000 per year.
"A procedure for preparing a pregnant woman and the father of the expected child for the process of childbirth, with the aim of reducing apprehension and fear, the amount of pain, the use of drugs, and the reliance on anesthetics." Attorneys' Dictionary of Medicine.
The parties stipulated that the court should base its decision on their financial affidavits dated in June 2004. Accordingly, for the future, in determining whether there is a substantial change of circumstances, the base line will be the June 2004 financial affidavits.
1. Unallocated Alimony and Child Support
The parties stipulated that the periodic payment of alimony and support should be unallocated.
The defendant argues that the court should grant the unallocated alimony and support on a rehabilitative basis because over time, when the plaintiff's parenting duties lessen, she will be able to increase her earnings. The court agrees that over a period of time when the children get older the plaintiff will be able to increase her earnings, but the speed of the plaintiff's rehabilitation sought by the defendant is not realistic and not in the best interests of the children.
The plaintiff, however, argues that there "is no basis in Connecticut law supporting the . . . [defendant's] contention that the plaintiff should receive only rehabilitative alimony . . . Under Connecticut law, periodic alimony is indefinite as to amount or duration." The cases relied on by the plaintiff do not support her claims. In Mathis v. Mathis, 30 Conn.App. 292, 294 (1993) a case cited by the plaintiff in support of her claim, our appellate court held: "We have reviewed challenges to an award of time limited alimony on many occasions. The trial court does not have to make a detailed finding justifying its award of time limited alimony . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court's award . . . There must be sufficient evidence to support the trial court's finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand. There are several valid reasons for the awarding of time limited alimony. One is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency. A time limited alimony award generally is for rehabilitative purposes, but other reasons may also support this type of alimony award. Another reason is to provide support for a spouse until some future event occurs that renders such support less necessary or unnecessary. (Citations omitted; internal quotation marks omitted)." Scoville v. Scoville, 179 Conn. 277, 279 (1979), another case cited by the plaintiff does not stand for the proposition that periodic alimony can not be time increased or decreased in the original decree. Indeed, the sole issue in Scoville was whether the original decree precluded modification of the alimony award.
The court in awarding unallocated alimony and support takes into consideration the age of the children, the professional training, education and employability of the plaintiff and the defendant. Furthermore, if in the future there is a substantial change of circumstances, the unallocated award of alimony and support, and the alimony award after the youngest child reaches the age of 18 is fully modifiable in accordance with the "legislative preference favoring the modifiability of orders for periodic alimony." Scoville v. Scoville, supra at 279. The court in awarding a step down unallocated alimony and support takes into account that the plaintiff should be able to spend more time working in her profession as the children get older. There should be a point where plaintiff should be self sufficient and the court believes this will occur on October 1, 2012. Nevertheless, the court has continuous jurisdiction to make adjustments in order to take into account a substantial change in circumstances.
The defendant shall pay to the plaintiff as unallocated alimony and support for the period of November 1, 2004 through October 31, 2006 the sum of $2,785 every two weeks (approximately 60 per cent of the defendant's net salaried income) and 50 per cent of the value of all bonuses, stock options and other non salaried compensation earned during that period.
For the period from the filing of this decision through October 31, 2004, the defendant shall pay to the plaintiff unallocated alimony and support at the same rate the defendant is currently paying under the temporary orders (that is, $6,067 per month or approximately $202 per day).
Net salaried income is gross income of $155,000, less 3.4 percent RCA, less 1.2 percent Medicare, and less 2 percent Long Term Disability or approximately $144,700.
The court in using the word "earned" intends to include all such compensation for that period without regard to when it is received by the defendant. The share of the bonus, stock option and other non-salaried compensation shall be paid to the plaintiff ninety days after the defendant receives the non-salaried compensation.
The defendant shall pay to the plaintiff as unallocated alimony and support for the period of November 1, 2006 through October 31, 2008, the sum of $2,225 every two weeks (approximately 40 percent of the defendant's net salaried income) and 40 per cent of the value of all bonuses, stock options and other non-salaried compensation earned during that period.
The defendant shall pay to the plaintiff as unallocated alimony and support for the period of November 1, 2008 though September 30, 2012 the sum of $1,390 every two weeks (approximately 25 percent of the defendant's net salaried income) and 25 per cent of the value of all bonuses, stock options and other non-salaried compensation.
On November 1, 2008, the youngest child, Emily will be 14.
On and after October 1, 2012, when the youngest child, Emily, is 18 the defendant shall pay to the plaintiff alimony in the amount of $1.00 per year.
In addition to the foregoing, the defendant shall pay to the plaintiff as additional unallocated alimony and support $21,099 for the period of February 1, 2001 and August 1, 2001 when he failed to support his family. Said sum to be paid within a year of the date of this decree.
2. Medical and Dental Expenses
The defendant shall be responsible to maintain the existing medical and dental insurance for the benefit of the minor children. The parties shall share in the cost of any unreimbursed medical expenses as follows: 66% by the defendant and 34% by the plaintiff.
The parties advised the court there is a fund, set aside from the proceeds of one of the defendant's bonus payments, which is reserved to pay for orthodontia for one of the children.
3. Property Division
The marital home, 103 Old Easton Turnpike, Weston, Connecticut (marital residence) is jointly owned by the plaintiff and the defendant. The approximate fair market value of the property is $480,000. There are two mortgages on the property in the total approximate amount of $203,000. The defendant's interest in the marital residence is hereby transferred to the plaintiff to be her property, subject to said mortgages. The first and second mortgages shall be assumed by the plaintiff and the plaintiff shall indemnify and hold the defendant harmless as a result of said mortgages, including the notes secured by said mortgages.
The defendant argues, in part, that the plaintiff should not be given the house because "[i]f the house was awarded to the [plaintiff], the [defendant] is concerned that [the plaintiff] would try to relocate the children." To alleviate this fear, the court orders that the plaintiff shall not sell, lease, rent, encumber in excess of $25,000 103 Old Eastern Turnpike without the permission of the court.
The defendant shows other assets consisting of bank accounts in the amount of $27,000, pension, retirement plans and other future assets in the amount of $178,000, a total of approximately $200,000. The defendant shall transfer to the plaintiff twenty-five percent of these assets less $25,000 advanced by the defendant at the beginning of this litigation pursuant to an order of the court in order to allow the plaintiff to purchase an automobile.
The defendant shall return to the plaintiff (and cause to be delivered to her) the christening dress, video camera, large-screen television and two mahogany beds. All other personal property in the possession of the defendant shall be his and all other personal property in the possession plaintiff shall be hers.
4. Other Orders
The guardian ad litem's motion for the balance of her fees of $5,925, which the parties agree are reasonable, shall be paid by the defendant within thirty days.
The plaintiff seeks reimbursement of bank fees in the amount of $3,798 she incurred as a result of the defendant's failure to comply with the pendente lite unallocated alimony and child support orders in a timely manner. Indeed, the defendant was not only late in mailing his payments, but he directed his bank to stop payment on two checks. This conduct on the defendant's part is typical of him and demonstrates a vindictive attitude on his part. The court orders the defendant to reimburse the plaintiff $3,798 for the bank charges within sixty days.
The plaintiff was required to seek a capias in order to incarcerate the defendant for failure to comply with discovery orders. In doing so, the plaintiff incurred a state marshal's fee in the amount of $400. The defendant is ordered to pay to the plaintiff $400 to reimburse her for this fee within sixty days.
The defendant shall pay to the plaintiff his share of the unreimbursed medical expenses for the children in the amount of $2,681 within sixty days.
5. Attorney Fees
The defendant shall pay to the plaintiff attorneys fees she incurred in the amount of $15,000 (Attorney Moch — $10,000 and Attorney Kanowitz — $5,000) as ordered by Judge Novack on July 9, 2001.
The plaintiff seeks to have the defendant pay the balance of the attorneys fees incurred by her. There is no question that a great percentage of these fees incurred by the plaintiff were a result of the defendant's vindictiveness. Taking into consideration all the evidence, the court orders the defendant to reimburse the plaintiff for $25,000 of her attorneys fees at the rate of $1,000 per month, commencing with the month of November 2006 and continuing monthly until the said sum is paid.
6. Insurance
The defendant shall cause the plaintiff to be named the irrevocable beneficiary of $500,000 of the $1,000,000 life insurance on his life from this date through September 30, 2014 and the defendant shall furnish to the plaintiff proof of said irrevocableness within sixty days.
7. Educational Support
Based upon the education of the plaintiff and defendant and other evidence at the trial of this case, it is more likely than not that the parents of the children would have provided support to the four children issue of the marriage for higher education if the family were intact. The court will order the plaintiff and defendant to pay one dollar a year as educational support, thereby retaining jurisdiction for this court to enter orders in the future. General Statutes § 46b-56c(f).
8. Income Taxes
The defendant shall hold the plaintiff harmless for any income tax liability for the tax years of 2001, 2002, 2003 and 2004 with respect to his income and claimed deductions.
The plaintiff shall be entitled to the dependency exemption for income tax purpose for Gordon and Douglas and the defendant shall be entitled to the dependency exemption for income tax purpose for Courtney and Emily.
9. Proof of Income
Defendant and plaintiff shall provide each other with their W-2s no later than February 15, 2005 for the tax year of 2004 and thereafter on February 15 of each year for the preceding tax until February 15, 2015.
10. John Curtis CT Page 15950
The defendant was released from custody as a result of John Curtis, the brother of the defendant, posting a $25,000 cash bond with the court. John Curtis seeks a release to him of the cash bond. The plaintiff claims that the $25,000 came from the defendant and should be paid to her. Obviously, the burden of proof rests with the plaintiff. Although this is a tactic which defendant has demonstrated that he would employ with respect to the plaintiff, there is insufficient evidence that the $25,000 deposited in the court in fact was that of the defendant. Simply put, the court finds that the plaintiff has failed in her proof. Accordingly, the clerk of the court is ordered to release the $25,000 to John Curtis within thirty days from the date of this decree but not before the expiration of the appeal period.
Berdon, Judge Trial Referee