Opinion
FA02 0345336 S
November 20, 2003
MEMORANDUM OF DECISION
This is an action for dissolution of marriage and other relief brought to the Judicial District of Danbury. Many of the facts that give rise to this action are not in dispute. The plaintiff, whose maiden name is Christina Seaman, and the defendant were married at Islip, New York, on March 1, 1981. The plaintiff has resided continuously in the State of Connecticut at least twelve months immediately prior to the date the complaint was filed. The marriage between the parties has broken down irretrievably without any reasonable prospects of reconciliation. There are three children issue of this marriage, Monica N. Dandapani, born on June 11, 1982; Nikhil R. Dandapani, born November 16, 1983; and Sheela K. Dandapani, born November 24, 1986. No other children have been born to the plaintiff wife. Neither party has received state assistance.
The parties are in dispute as to the cause of the breakdown of the marriage. From the evidence presented, the court finds that the plaintiff is more at fault for the breakdown of the marriage than the defendant.
The plaintiff graduated from Hosfta in 1980. She currently suffers from stress problems and depression. She takes medication for asthma. Overall, she is in reasonably good health.
The plaintiff is currently employed as a temporary office assistant with gross weekly income of $600 and net weekly income of $455.64.
She owns a Steinway piano that has a fair market value of $20,000. The piano was purchased on May 12, 1998 for $20,000. The plaintiff's parents gave her $15,000 to be used toward the purchase of a piano with marital assets of $5,000 being used for the balance of the purchase price.
The plaintiff argues that the $15,000 of the $20,000 value of the Steinway piano should not be considered as a marital asset since the $15,000 was a gift from her parents; citing Weinstein v. Weinstein, 18 Conn. App. 622 (1989); and Parley v. Parley, 72 Conn. App. 742 (2002). The court is not persuaded by that argument. This court reads the Parley decision and the Weinstein decision as holding that in determining division of property the fact that gifts were involve from one party's parent, which results in the other party having nothing to do with the acquisition of the asset for which the gift was used, does not require that the gift be excluded from the division of marital assets. The fact of gifts is one of the factors to consider under § 46b-81(c). In Watson v. Watson, 221 Conn. 698 (1992), the court at page 711 stated in part as follows:
The fact that the defendant, subsequent to his marriage to the plaintiff, received substantial real property from his parents in his name only does not operate to exclude this property from the marital assets. Cf. North v. North, 183 Conn. 35, 39, 438 A.2d 807 (1981) (property acquired by inheritance may be assigned under 46b-81).
The plaintiff also owns jewelry consisting of the following: (a) two separate pair of yellow gold pierced screw post earrings settings with one pair having a value of $5,195, and a second pair having a value of $4,950; (b) diamond pendant with a value of $7,895; (c) cluster earrings with a value of $650; (d) yellow gold pierced Omega back earrings with a value of $495; (e) yellow gold snake pendant with a value of $3,650; (f) mesh style neck chain with a value of $3,500.
She has a Fleet savings account with $257.71 and another Fleet account with $1,528.23. In dividing various assets between the parties, the court is not taking into consideration the $1,528.23 account as that is the remaining balance from a $5,000 property distribution which the defendant received an equal amount. She has an IRA with Morgan-Stanley with a value of $279.04; an IRA Fidelity that is separate from the defendant's with a value of $6,508. She has liabilities consisting of the following:
NAME OF DEBTOR BALANCE DUE
Capital One VISA $2,498.00
Fleet VISA $3,266.00
Household Credit $3,985.00
Bank of America $5,566.00
First North America (Computer) $1,742.00
Attorneys Fees $10,227.22
ADT Alarms $1,402.00
Her liabilities total: $28,686.22
The defendant was born on February 17, 1952.
He obtained an engineering degree while in India, and a master's degree in England.
The defendant owns a 1996 Lexus with a fair market value of $8,700. The Lexus was purchased for the plaintiff to operate at around the same time the defendant's Porsche was purchased. The Lexus was purchased as a used vehicle at a cost of approximately $36,000 for cash. The plaintiff operates the Lexus. He also owns a 1999 Porsche, with a current value of $20,500. The Porsche was purchased on July 9, 1998 for a total of $50,767.11 for cash. He also owns a 1998 Subaru that is used primarily by one of the children. That vehicle has a value of $3,200 and a loan balance of $7,121.29. There is a joint checking account with Citibank (New York) with a total balance of $25. There is a Citibank checking account in his name with a balance of $2,063.20. There is also a Citibank savings-MMA (New York) in his name with a balance of $5,000. He also has cash in the amount of $5,000 which the court is not considering in the distribution of assets in accordance with the agreement of the parties.
His stocks, bonds and mutual fund, as shown on Schedule 4 to his Financial affidavit dated October 17, 2003, consists of three general categories.
The first category is a Citigroup brokerage joint account consisting of Travelers-TAP A; shares in joint names with a total of 69 shares and a total value of $1,115.04 and a Travelers-TAP B joint account consisting of 142 shares and a total value of $2,306.08. The second category is an Ameritrade brokerage account consisting of LSI Tech with 20 contracts and a total value of $100; Exel Maritime with 8 shares and a total value of $10.88; and Qualcomm with 100 shares and a total value of $4,393. The third category is a Citigroup brokerage account consisting of Citigroup with 5,300 shares and a total value of $258,852; Travelers-TAP A with 121 shares and a total value of $1,955.36; and Travelers TAP B consisting of 250 shares and a total value of $4,060.
He has deferred compensation plans consisting of the following:
CT Page 12919 NAME OF PLAN VALUE DATE VALUE
Citigroup 401K September 22, 2003 $195,511.04
The Citigroup-Savings Plan September 22, 2003 $21,176.10
Strong IRA September 22, 2003 $1,506.73
Morgan-Stanley IRA September 22, 2003 $3,854.78
Fidelity IRA September 9, 2003 $6,508.18
CITIGROUP PENSION PLAN:
Non-Qualified Citibuilder Plan September 25, 2003 $14,133.91
Citigroup Cash Balance Plan September 25, 2003 $7,400.92
Citibuilder Cash Balance Plan September 25, 2003 $19,134.31
Single Life Annuity (from age 65) Will pay $1,152.49 monthly from the defendant's age 65
Golodetz Trading Corp. The defendant's interest in this plan is vested and will pay at age 65 $119.91 monthly.
The defendant has other assets consisting of the following:
1. Redding Country Club Bonds valued at $8,500. The parties joined the Redding Country Club in 1995 with the plaintiff's parents paying the $15,000 initiation fee. They are still members in good standing today.
2. EEE Savings Bonds value $1,500.
3. Citigroup severance gross $48,785, less federal tax $6,762.43 less New York State tax $3,510.63, less Medicare $707.38, less SDI tax $9.63, net amount received $37,794.93. There is also a joint New York time share at Deer Run Village with a total value of $5,000. As a result of the Citigroup severance payment to the defendant in the gross amount of $48,785, there is still owed by him for federal taxes $11,159. He also owes Connecticut state taxes as a result of that severance payment $9,943. He will have a refund of New York State taxes of $11,272. Deducting the refund of $11,272 from the combined federal and state taxes due of $21,102, results in the defendant having a short-fall of $9,830. If the correct amounts had been withheld from the severance plan, there would then be $9,830 less available at the present time for distribution between the parties.
Although not shown on the defendant's financial affidavit, he has approximately 84,000 frequent-flyer miles with British Air and approximately 22,000 frequent-flyer miles with American Airlines.
In the calendar year 1997, the defendant's gross salary was $260,268. In the calendar year 1998, the defendant's gross salary was $309,862. In the calendar year 1999, the defendant's gross salary was $311,714. In the calendar year 2000, the defendant's gross salary was $250,463. In the calendar year 2001, the defendant's gross salary was $354,482. In the calendar year 2002, the defendant's gross salary was $246,253.
The plaintiff argues that the court should consider the defendant's earning capacity in determining alimony, support, and division of assets. The court is not persuaded by that argument. In Miller v. Miller, 181 Conn. 610 (1980) 436 A.2d 279, the court at page 612-13 held in part as follows:
Our cases indicate that it is permissible to utilize a party's earning potential in making financial awards where, as here, the earnings of that party are voluntarily, depleted so as to deprive the spouse of financial support . . . In the present case, the defendant testified that he voluntarily and unilaterally left his employment at the Savin Corporation several months after the plaintiff had commenced the present action. This resulted in a reduction in his salary. (Citations omitted.)
The court finds that in this case the defendant did not voluntarily deplete his earnings. His loss of employment was not as a result of any voluntary action on his part.
The defendant presently receives unemployment compensation in the gross weekly amount of $405 less deductions.
Monica is presently a pre-med student in her senior year at NYU. One of the primary disputes between the parties has to do with the college loans that were taken out for Monica and co-signed by the defendant.
The defendant co-signed a student loan for Monica in the face amount of $30,104.42 to attend Bate's College in her freshman year and co-signed a second loan for Monica to attend NYU in her sophomore year in the face amount of $32,550.
As of August 6, 2003, the balance due for Monica's two college loans was $62,535. The defendant seeks an order that upon the sale of the marital residence that "the loan for Monica's education in the amount of $62,535" should be paid.
Monica attended Bates College in her freshman year and transferred to N.Y.U. at the start of her second year. At the start of her third year, the plaintiff's father gave her $30,000 to be applied to her tuition. She has completed her third year and started her fourth year in September of 2003. The plaintiff's father paid $10,000 of Monica's $14,000 first semester senior year bill at NYU.
This court finds that it did not have the jurisdiction to require the plaintiff to pay any part of the college loan obligation incurred by the defendant prior to the adoption of Public Act 02-128, and does not have such jurisdiction under Public Act 02-128.
In Cariseo v. Cariseo, 190 Conn. 141 (1983) 459 A.2d 523, the issue was whether or not a modification of alimony was justified on the basis that expenses had increased because two of the children were residing with a parent while attending college. In holding that the decision of adult children to further their education while remaining in the family household does not constitute a substantial change of circumstances sufficient to warrant their modification of alimony, the Cariseo court held at pages 142-43 in part as follows:
The obligation of a parent to support a child terminates when the child attains the age of majority, which, in this state, is eighteen . . . "The statutory grant of jurisdiction to the Superior Court in matters relating to child support incident to the dissolution of a marriage likewise expressly circumscribes the court's jurisdiction to orders involving only `minor children." . . . The question presented by this case is whether a substantial change of circumstances for modification of an alimony award may be predicated on financial obligations arising out of a parent's maintenance of adult children in the family home while they are attending college. The short answer to this question is no. Expenses incurred by a parent for the maintenance of an adult child while attending college cannot serve as a justification for modification of alimony. (Citations omitted.)
This court therefore, based on the holding in Cariseo, and the cases cited therein, holds that it does not have the jurisdiction prior to the adoption of Public Act 02-128 to require the plaintiff to pay any of the expenses of an adult child while attending college which also prohibits the court from ordering the plaintiff to be responsible for the loans signed by the defendant. The court further holds that Public Act 02-128, the act concerning educational support orders, does not give the court jurisdiction to require the plaintiff to be responsible for any part of the loans signed for by the defendant. In State v. Nowell, 262 Conn. 686(2003) 817 A.2d 76, the court at page 702 stated in part as follows:
Whether to apply [an act] retroactively or prospectively depends upon the intent of the legislature . . . [There is a presumption of] legislative intent that statutes affecting substantive rights shall apply prospectively only . . . This presumption in favor of prospective applicability, however, may be rebuffed when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively . . . We generally look to the statutory language and the pertinent legislative history to ascertain whether the legislature intended that the amendment be given retrospective effect.
This court finds that the educational support statute Public Act 02-128 does affect substantive rights as it can impose a duty to pay for college expenses that did not exist prior to its adoption. This court has reviewed the statutory language of the act and the pertinent legislative history and does not find any intent that the act to be given retrospective effect. This court therefore concludes that it does not have the jurisdiction to order the plaintiff to be responsible for any part of the promissory notes that were co-signed by the defendant for the college expenses for Monica. The statute does not provide for reimbursing a parent for college expenses or liabilities incurred prior to its effective date. Such reimbursement would amount to a retroactive order which not allowed by the educational support statute.
Nikhil presently attends the Merchant Marine Academy at Kingspoint, New York. He has completed his first year and commenced his sophomore year. He presently does not have any cost for attending the Merchant Marine Academy. In the event he were for whatever reason to attend a different college, then in all probability he would have college expenses.
Sheela commenced her senior year in high school in September of 2003.
This court finds as a matter of fact that the parents would have provided support to all three of their children for higher education if the family were intact.
ORDERS
This court has considered the provisions of § 46b-62 regarding the issues of alimony, and has considered the provisions of § 46b-81(c) regarding the issues of property division, and has considered the provisions of § 46b-62 regarding the issues of attorneys fees, and has considered the provisions of § 46b-56 regarding the issues of custody and visitation, and has considered the provisions of § 46b-84 as well as the child support guidelines regarding the issues of support. The court enters the following orders:
A. BY WAY OF DISSOLUTION
1. The marriage between the parties is dissolved and each party is declared to be single and unmarried.
B. BY WAY OF ALIMONY
1. The defendant is to pay to the plaintiff alimony in the sum of $1 per year.
2. Alimony is to terminate upon the death of the plaintiff or the defendant or upon the remarriage of the plaintiff.
3. The provisions of §§ 46b-86(a) and 46b-86(b) are applicable.
4. The defendant is to inform the plaintiff in writing of any employment offers that he receives or any employment that he obtains within fifteen days of such receipt or obtaining of employment.
5. The defendant's retirement on or after age sixty-five shall not constitute a voluntary reduction of earnings by him.
6. To the extent that the plaintiff is eligible for COBRA medical insurance under the defendant's prior employment, he is to cooperate with her if she elects to obtain such coverage which would be at her sole cost and expense.
C. BY WAY OF SUPPORT
1. The court orders that the defendant pay to the plaintiff as support for the minor child $76 per week. He is to inform her in writing of any employment offers that he receives or any employment that he obtains within fifteen days of such receipt or obtaining of employment.
2. The parties are to share equally in Monica's second semester in her senior year at NYU for all of the college expenses allowed by Public Act 02-128 at the University of Connecticut full-time in-state student costs. Each parent is to forward directly to the institution of higher education the one-half expense for room, board, dues, tuition, fees, registration, application costs, and medical insurance cost. Each parent is to pay their share for the cost of books directly to the child.
3. The court orders that any allowed college expenses incurred by Nikhil in accordance with provisions of Public Act 02-128 be shared equally between the parties.
4. The court orders that all college expenses incurred by Sheela be divided equally between the parties for those expenses allowed under Public Act 02-128.
5. If either party has health insurance through employment for the minor child, Sheela, at reasonable costs, then such party is to obtain such health insurance. The defendant is to pay 31 percent and the plaintiff 69 percent of unreimbursed health insurance for Sheela after the plaintiff pays the initial $100.
6. To the extent the defendant has COBRA medical insurance coverage available through his prior employer for the benefit of the minor child at a reasonable cost, he is to provide such coverage until his support obligation terminates.
D. BY WAY OF CUSTODY AND VISITATION
1. The court enters an order of joint custody for the minor child, Sheela, with primary physical residence with the plaintiff. The defendant is to have visitation every other Sunday for at least six hours.
E. BY WAY OF PROPERTY ORDERS
1. The defendant is to transfer to the plaintiff all of his right, title and interest in the 1996 Lexus by November 20, 2003. The 1999 Porsche is awarded to the defendant as well as the 1998 Subaru. He is responsible for the loan balance on the 1998 Subaru and is to hold the plaintiff harmless therefrom.
2. The $5,000 shown on the defendant's financial affidavit under Schedule 3 as property settlement is awarded to the defendant. The $1,528.21 in the plaintiff's Fleet Bank account is awarded to the plaintiff, as well as her Fleet savings and her IRA Morgan-Stanley.
3. The $25 Citi (New York) checking account shown on the defendant's financial affidavit is awarded to the defendant.
4. The Citibank checking (New York) shown on the defendant's financial affidavit with a balance of $2,063.20, as well as the Citibank Savings MMA (New York) shown on the defendant's financial affidavit with no balance shown, as well as his Citibank Savings MMA (New York) with a balance of $5,000, is ordered divided equally between the parties.
5. All of the stocks, bonds and mutual funds shown on the defendant's financial affidavit under Schedule 4 totaling $271,081.80 is ordered divided equally between the parties both as to basis and value.
6. All of the deferred compensation plans shown on the defendant's financial affidavit on Schedule 5 totaling $269,235.47, and including Goldetz and Single Life Annuity are ordered divided equally between the parties. In the event any Qualified Domestic Relations Order is required to effectuate this division, then the parties are to share equally in the cost for the preparation thereof. The court retains jurisdiction for the purpose of effectuating the terms of this order. Each party shall direct their attorney to cooperate in the timely processing of the Qualified Domestic Relations Order, and each party shall be individually responsible for their counsel fees incurred to finalize the Qualified Domestic Relations Order. The parties shall equally share the cost of the pension actuary, Mr. Barry Kaplan, and each shall initially tender to him the sum of $250 to commence his investigation.
7. The Deer Run Village time share shown on each party's financial affidavit is ordered sold with each party to receive one-half of the net proceeds.
8. The country club bond at the Redding Country Club with a value of $8,500 is awarded to the defendant.
9. The two pair of diamond earrings with values of $5,195 and $4,950 as well as the lady's mesh style neck chain with a value of $3,500 are all awarded to the plaintiff. The lady's diamond pendant with a value of $7,895, the cluster earrings with a value of $650, the earrings with a value of $495, and the lady's yellow gold smoke chain pendant with a value of $3,650 are all awarded to the defendant.
10. All other jewelry owned by the plaintiff as well as her mink coat are awarded to the plaintiff
11. The Steinway grand piano is awarded to the plaintiff.
12. The EE savings bonds shown on the defendant's financial affidavit under Schedule 6 with a value of $1,500 are awarded divided equally between the parties.
13. The Citigroup severance that is shown on the defendant's financial affidavit on Schedule 6 with a balance of $37,794.93. The court has authorized certain payments to be made from that account for the benefit of both the plaintiff and the defendant. The net balance that is due in that account, as of the date this decision is filed, is ordered distributed as follows: (a)$11,830 is awarded to the defendant to make up the net deficit in federal and state income tax returns arising out of the Citigroup severance package. (b) In view of the fact that between July 30, 2003 and September 15, 2003, the defendant paid to his attorney from marital assets the total of $10,876, the court finds that the failure to award counsel fees to the plaintiff would substantially undermine the other financial orders that have been entered, and the court therefore directs that $10,876 be paid to the plaintiff. The balance of the account is then ordered divided equally between the parties. That division is to be completed by December 15, 2003.
14. The IRA Fidelity account shown on the plaintiff's financial affidavit is ordered divided equally between the parties.
15. The parties had to share equally in any increases or decreases in value of any of the assets that are ordered transferred under paragraphs 5, 6, and 11 as of the date of the distribution of the asset.
16. The parties entered into an agreement for the distribution of house artifacts and belongings as marked as Exhibit A. The court orders that the household effects and belongings be divided in accordance with that exhibit.
17. The family home is presently on the market for sale. The court orders that the net proceeds from the sale be divided equally between the parties.
18. The plaintiff is to pay all of the liabilities shown on her financial affidavit and hold the defendant harmless therefrom. The defendant is to pay all of the liabilities shown on his financial affidavit and hold the plaintiff harmless therefrom.
19. The $1,800 security deposit that the plaintiff made for the apartment she has rented is awarded to the plaintiff by December 15, 2003. That security deposit is not shown on her financial affidavit. It represents one month's rent. It is being held by her landlady.
20. The defendant is ordered to transfer to the plaintiff one-half of his frequent-flyer miles with British Air, and one-half of frequent-flyer miles with American Airlines. In the event both of those transfers cannot be accomplished, then the defendant is to pay to the plaintiff $2,000 and he then retains his frequent-flyer miles.
F. MISCELLANEOUS ORDERS:
1. Pursuant to Connecticut Practice Book § 61-11(c), the court sua sponte orders that the automatic stay regarding property orders be terminated.
2. The parties are ordered to exchange copies of their federal and state income tax returns for so long as there is an outstanding support order and/or an outstanding alimony order or any arrearage thereto.
3. Counsel for the plaintiff is to prepare the judgment file within thirty days from date of this decision and send it to counsel for the defendant for signature and filing.
4. If this court had the authority to order the plaintiff to pay any part of the college loan debts of the defendant for Monica, then this court would have ordered the plaintiff to be responsible for one-half of such loans. In such a situation, all of the remaining alimony, support and property orders entered would have been exactly the same.
5. The defendant has the right to claim the interest and real estate taxes on the family residence that were paid during the calendar year 2003.
6. The plaintiff has a right to claim the minor child, Sheela, as a deduction for federal and state income tax purposes for the calendar year 2003.
SIDNEY AXELROD JUDGE TRIAL REFEREE.