Opinion
No. FA03 0285366-S
February 15, 2005
MEMORANDUM OF DECISION
I. Procedural History
The plaintiff seeks the dissolution of her marriage to the defendant by a complaint dated August 13, 2003 requesting, inter alia, joint legal custody of their minor child Joshua, with primary physical custody vested in the plaintiff. The plaintiff also seeks a fair and equitable distribution of marital assets. On August 23, 2004 custody and visitation orders were finalized, pendente lite. The remaining issues for this court to resolve are the distribution of marital assets and child support. The dispute regarding child support is limited to the assignment of the dependant exemption for federal tax purposes.
Although these issues were resolved by agreement of the parties, the defendant sought to revisit the issue of visitation at the time of trial. The court denied this request, except with respect to a further agreement of the parties concerning the Christmas visitation schedule.
II. Facts
The defendant testified that he does not believe that the marriage has broken-down irretrievably and that there is a possibility of reconciliation. The defendant claims that the plaintiff has refused to mediate the issues leading to her complaint for the dissolution of their marriage. The dispute between the parties stems primarily from: 1) the defendant's use of alcohol, and 2) his desire to isolate the plaintiff from her family members, especially after the birth of their son, Joshua, in the year 2000. The plaintiff also alleges mental abuse by the defendant.
Both parties are in their forties, are in good health and have had longstanding and consistent employment records, with the exception of the plaintiff's pregnancy leave and part-time employment after the birth of their son, Joshua. The plaintiff is a high school graduate. She was a longstanding employee of the Wallingford police department until she decided to pursue a new career. She is currently employed as a dispatcher at Quest Diagnostics and earns a net weekly wage of $499. In addition, she receives weekly child support from the defendant, in the amount of $128. The plaintiff lived with her parents at their home, located at 107 Pond Hill Road in Wallingford, until she was married in 1999 at the age of thirty-five. It is undisputed by the parties or any witness that she has very close ties with her family, and that she enjoys spending time with them, especially on Sunday afternoons for a traditional family dinner. As a devoted daughter, the plaintiff was integrated in the social and economic fabric of her family home. Her devotion to her family and their home included funding nearly $10,000 in home improvements while she lived there with her parents in 1991 and 1992.
This figure does not include her claim of an Annual Goal Sharing Bonus.
The defendant had been previously married with children and subsequently divorced. The defendant is a college graduate and 20-year veteran of the Navy, where he achieved the rank of Chief Petty Officer and from which he was honorably discharged. The defendant is currently employed as an operations manager for Circuit City and receives weekly net income of $1,017 from wages, bonus and his military pension.
The defendant's bonus fluctuates and will be accounted for separately by agreement of the parties whereby, in addition to agreed upon child support, the defendant will pay 12% of his gross bonus payments to the plaintiff.
The parties were married on November 27, 1999. Within two months of their marriage, the plaintiff became pregnant. By all accounts, the pregnancy was difficult and the plaintiff's illness during the pregnancy became so severe that she was hospitalized on one occasion. After this extremely difficult pregnancy, she gave birth to their son, Joshua. However, within days of Joshua's birth, tragedy struck when, in October 2000, the defendant's mother passed away after a long illness, and, shortly thereafter, the plaintiff's father passed away suddenly and unexpectedly.
This marriage was troubled from its beginning. Within three weeks of the marriage, the plaintiff testified that she thought there were problems with her marriage, and that she missed her family. During the pregnancy and after the death of their respective parents, a number of problems and disputes arose between the parties that continued until and throughout the trial.
A. Allegations of Alcohol Abuse
While pregnant and ill at home, the plaintiff became aware of the defendant's consumption of alcohol, which he had previously kept hidden from her due to concerns she had expressed regarding her own family history of alcohol abuse. The defendant refuses to abstain from the use of alcohol. The plaintiff contends that the defendant's alcohol abuse is a primary reason for seeking the dissolution of their marriage.
The defendant testified that he likes to drink beer. According to a court ordered substance abuse evaluation, the defendant reported drinking beer once in awhile after work and four to five beers on weekends. Priscilla Russell, the substance abuse evaluator who testified at trial as an expert, suspected that the defendant was under-reporting his use of alcohol. She concluded that the defendant abused alcohol. She reached this expert opinion because, inter alia, the defendant's refusal to abstain from alcohol jeopardized his marriage.
The evidence presented at trial supports the evaluator's suspicion that the defendant under-reported his use of alcohol. For example, the plaintiff presented copies of 134 checks issued between 2002-2003, all of which were issued to AP, a discount liquor store frequented by the defendant. The amounts of the checks varied, but the majority of them were in the $8 to $12 range and were issued, on average, every five to six days. Evidence was also presented that the defendant's beverage of choice is Genessee Cream Ale, purchased in "30 Packs." No clear evidence was presented of the defendant's daily use of alcohol, but it is more likely than not that the defendant's daily consumption of alcohol is greater than the amount he reported to his alcohol abuse evaluator, Priscilla Russell.
The court notes that the defendant testified that he occasionally bought beer for his father, as well as for himself which suggests that not all of the beer he purchased was for his personal consumption.
On the other hand, the evidence indicates that the defendant's use of alcohol did not interfere in any way with other aspects of his life. He has never been arrested for operating a motor vehicle while impaired or under the influence. His employer finds him to be a highly valued employee who has had no disciplinary problems and has never missed a day of work. The defendant entered into a visitation agreement, which requires him to curtail his use of alcohol prior to visitation, and he has abided by this agreement without a finding of contempt as of the date of this trial. Moreover, there was only one allegation of inebriation made by the plaintiff, in which she allegedly found empty beer cans in the house and the defendant sleeping with a blanket over his head.
B. Conflict between Nuclear and Extended Family CT Page 2593
According to the testimony of all the witnesses, the plaintiff's extended family is close-knit and functions well together. Family gatherings were regularly held at the plaintiff's family home at 107 Pond Hill Road, usually for a Sunday afternoon meal at 2:00 p.m. The defendant was welcomed to these events during the courtship between the parties, as well as during the course of their marriage. However, the defendant was not very socially engaged while attending these events, and the testimony reflects that this was especially true after their marriage in November 1999. The plaintiff's impression of the defendant's behavior at these events was that he seemed either quiet or mad. Over time, the defendant would occasionally miss these events altogether, or drive separately to them and leave early.From its inception, the plaintiff saw a serious problem in her marriage. Within three weeks of their marriage, the plaintiff was unhappy. She said that she missed the family she had lived with for thirty-five years. Over time, the relationship between the defendant and the plaintiff's mother soured. It remains a source of conflict between the parties, as reflected in the visitation orders entered on August 23, 2004, which limits contact between Joshua, the minor child, and his grandmother.
In planning for the birth of Joshua, the defendant wanted the couple to follow a child-birthing program known as the "Bradley Method." According to the parties, a conflict developed over one aspect of this approach to childbirth in which the participants in the Bradley Method are to be isolated as a nuclear family for two weeks after the birth of a child. The plaintiff would not agree to this aspect of the Bradley Method. This conflict became emblematic of the struggle between the defendant's view of the nuclear family he was interested in creating, versus the plaintiff's view of an extended family she loved and had grown accustomed to having fully engaged in her life. This was especially important to the plaintiff in light of her extended illness during her pregnancy, as well as the fact that she gave birth by caesarian section, and as a result, required more support than would have been necessary after a normal delivery.
Within days of Joshua's birth, the defendant's mother died after a long illness. Two weeks later, the plaintiff's father died suddenly. So during this struggle over the nature and structure of their new family, tragedy struck their respective families. The plaintiff, given her nature, personal history and medical condition reached out to her side of the family. The defendant, described by both parties as an "isolator," resisted this.
C. Mental Abuse
The plaintiff claims that the defendant abused her during the course of their marriage. The plaintiff testified that she developed sensitivity to the smell of cooked garlic and onions during her pregnancy. Although she was sick and often vomited due to her pregnancy, the smell of cooked garlic and onions made the symptoms of her illness worse. She alleges that the defendant used this sensitivity against her by cooking garlic bread whenever he was angry with her. Plaintiff's counsel refers to this activity as the defendant's "garlic wrath." The defendant did not rebut this allegation during the trial.
The plaintiff became depressed during the course of this short marriage. She took prescribed psychotropic drugs shortly after the birth of Joshua and the death of her father in 2000, as well as in 2003, when she was nearing her decision to file for the dissolution of her marriage. Based upon a preponderance of the evidence, the court cannot find that the defendant intentionally caused this depression and mental anguish; however, the defendant's emotional distance and insensitivity to her psychological well-being certainly contributed to her fragile emotional condition, which has improved since his departure from the marital abode.
D. The Marital Abode
Shortly after the sudden death of the plaintiff's father in October 2000, the plaintiff's mother moved into the home of another daughter. In November 2000, the parties moved into the plaintiff's family home, located at 107 Pond Hill Road, and assumed the mortgage payments on the property. In March 2001, the parties purchased the Pond Hill residence for the price of $140,000. According to the purchase and sale agreement, this price included a gift of equity, in lieu of a deposit, in the amount of $30,000 "from Seller to Buyers." This left a balance of $110,000 to be paid by the parties. The parties agree that the current value of the property is $195,000. As previously stated, the plaintiff made improvements to the property prior to the marriage, totaling $10,000. In her father's will, the plaintiff was the named beneficiary of a conditional bequest of $10,000 in recognition of these home improvements; however, the condition of this bequest was not met under the terms of the will because the decedent, Mr. Peters, predeceased his wife, Constance Peters.
Mrs. Peters testified that she sold the property to the parties for $110,000 because she thought that it was a price they could afford. In order to achieve this price, she gave the partiesa "gift of equity" of $30,000. Although she was unclear about the technical reasons for the gift of equity, she thought it had something to do with the mortgage and mortgage insurance. She also thought it was important for the purpose of maintaining local property values, and she thought that an appropriate listing price would have been $150,000, although she never considered placing the property on the open market.
F. The Defendant's Condominium
In February 2004, the defendant moved out of the marital abode into a condominium located at 101 Old Colony Road in Meriden. The purchase price for the property was $109,500. The defendant used $3,000 in jointly held assets for the deposit, by agreement of the parties. The purchase and sale agreement required the defendant to pay $18,900 at the closing, in addition to mortgage money of $87,600. The defendant claims to have received a $20,000 dollar loan from his father for this purpose. This loan does not appear on his financial affidavit and it was suggested at trial that the defendant previously testified that he received these funds as a gift in lieu of an inheritance. The parties agree that the current value of the property is $119,000.
Although this money was held in a joint account, this court finds that it was not a marital asset for the purpose of equitable distribution. See section III of this decision for a further discussion of this finding.
The court finds that there was no violation of the standing orders. The two checks used for the deposit, one for $1,000 and the other for $2,000, were voluntarily signed by the plaintiff. She felt considerable stress by the defendant's presence in the marital abode, and desired and benefitted from his departure.
F. Other Property
The parties hold other financial assets individually, the majority of which predate the marriage. However, the defendant's modest American Express and Vanguard Accounts, which also predate the marriage, were made joint accounts by the defendant shortly after the marriage.
III. Further Discussion
The marriage of the parties was troubled from its inception. The plaintiff testified that within three weeks of her marriage, she was unhappy and missed her family. It is important to note that these feelings of unhappiness occurred prior to her suspicions of alcohol abuse by the defendant. Neither party, however, appears to have been sufficiently committed to the success of this marriage. Although the defendant tried to form a nuclear family according to his own views, he tried to isolate himself and his wife from her extended family, and tried to hide his use of alcohol. Although he continues to claim his commitment to the marriage, he appears resolute in his preference of drinking beer on a regular basis compared with appeasing his wife's genuine fear of alcohol abuse. This is an irreconcilable difference that is emblematic of the deeper problem of the parties' lack of commitment to the marriage.
The two modest mutual fund accounts brought to the marriage by the defendant are now held jointly. The court finds that these premarital assets should be assigned to the defendant, and should not be included in the calculation of marital assets for distribution to the parties. No deposits were made into these accounts during the marriage. Withdrawals were made by the defendant to pay for a portion of the parties' wedding expenses, as well as to make a deposit on his condominium. These assets were never used as marital assets, and the court finds that they were held jointly for the convenience of the parties.
The former marital abode of the parties, located at 107 Pond Hill Road, and the defendant's new condominium are the primary assets of this marriage. As a part of the financial transaction in which they purchased their marital abode, the parties received a gift of equity from the plaintiff's mother in the amount of $30,000.
"A gift is the transfer of property without consideration . . . To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee . . . The burden of proving the essential elements of a valid gift rests upon the party claiming the gift. The question of whether a gift inter vivos or causa mortis has been made is within the exclusive province of the court . . . The determination of whether a gift has been made is not reviewable unless the conclusion of the court is one which cannot reasonably be made . . . The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact." (Citations omitted; internal quotation marks omitted.) Parley v. Parley, 72 Conn.App. 742, 749-50, 807 A.2d 98 (2002).
In Parley, the parents of one of the parties made a payment of $60,000 to the couple for the purpose of building an addition to their home for an in-law apartment, and the Appellate Court upheld the trial court's determination that the $60,000 payment was a gift to one party (their child) and not to the married couple. In the present case, the plaintiff's mother made a $30,000 gift of equity to the "buyers." This gift was made so that the couple could afford to purchase the plaintiff's family home, where she had resided for her entire life until her marriage to the defendant. The gift enabled the plaintiff to return to her family home, along with the defendant, within one year of her marriage, and upon the death of her father and the birth of their son, Joshua. The court finds that $10,000 of the gift of equity represents a reimbursement to the plaintiff for her pre-marital investment in the family home. In addition, the court finds that the gift of equity was intended as a gift to the plaintiff and therefore should not be included in the calculation of marital assets to be distributed in this dissolution.
Although the plaintiff's mother made this purchase possible, the defendant contributed to the maintenance and preservation of this property during the years he lived there with the plaintiff.
The purchase price of the marital abode was $140,000 and all of the equity in the home at that time was. attributable to the $30,000 gift of equity from Mrs. Peters to her daughter, the plaintiff in this case. The parties agreed that the market value of the property is $195,000. The court finds that the remaining equity in the home of $55,000 is a marital asset to be distributed to the parties.
Similarly, the defendant received $20,000 from his father for the purchase of his condominium. Based upon a preponderance of the evidence, the court finds that the $20,000 provided to the defendant by his father is a gift. The purpose of this gift was to facilitate the defendant's departure from the marital abode and to reestablish his life, independent from the plaintiff. This was a gift to the defendant alone and is not to be included as a marital asset for equitable distribution. Although the defendant testified at trial that this was a loan from his father, there is no specific loan repayment agreement, and the formalities of a loan transaction were not met in this case. Nor does the defendant's financial affidavit list this loan as a liability. Moreover, the defendant also acknowledged at trial that he had previously described this transaction as a gift in lieu of an inheritance.
Because the defendant failed to provide the address of his father to the plaintiff, verification of the nature of this family financial transaction is difficult.
Although the deposits for the purchase of the condominium were made exclusively by the defendant, and the title to the property is in his name alone, this investment was made during the course of the marriage, albeit after their separation. Since the defendant will share in the growth in value of the marital abode during the period of separation, it is also equitable that the plaintiff share the growth in value of the defendant's condominium during the same period, up until the time of dissolution. "In the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time at which to determine the value of the estate of the parties upon which to base the division of property . . . The mere increase in value of property following the parties' separation does not rise to the level of exceptional intervening circumstances. (Internal citations and quotation markings omitted.) Rolla v. Rolla, 48 Conn.App. 732, 745, 712 A.2d 440 (1998), cert denied, 245 Conn. 921, 717 A.2d 237.
Therefore, the growth in equity in this property during the separation of the parties is a marital asset for the purpose of distribution. The purchase price of the condominium was $109,500, and the parties agreed that the market value of the property was $119,000 at the time of trial. Therefore, the court finds that $9,500 of equity in the property is to be considered a marital asset.
In considering the statutory criteria set forth in General Statutes § 46b-81, which governs the disposition of marital property, "no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case." (Internal quotation marks omitted.) Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989), (quoting Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980)). In addition, "[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984). Taking these factors into consideration, the court orders a division of marital assets according to a ratio of two thirds for the plaintiff and one third for the defendant.
Section 46b-81 provides as follows:
(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall affect the transfer of the title of such real property as if it were a deed of the party or parties.
(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, 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, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.
Two thirds of the marital abode asset is attributable to the defendant in the amount of $18,333 ($55,000 X .3333). This figure is then discounted by the plaintiff's interest in the defendant's condominium in the amount of $6344 ($9,500 X .6677). This results in a credit in favor of the defendant in the amount of $11,989.
IV. Other Findings and Orders
The court finds that it has jurisdiction over this matter. The court also finds the allegations of the complaint to be true. The parties were married on November 11, 1999 in Meriden, Connecticut, and Joshua Dontigney was born during and is issue of this marriage. The marriage has broken-down irretrievably.
Therefore, the court issues the following orders:
1. The dissolution of the marriage based on irretrievable breakdown, effective today, February 15, 2005.
2. Joint legal custody of the minor child, Joshua F. Dontigney, with primary residence with the plaintiff mother.
3. The parenting plan as agreed to by the parties and entered as orders of the court, pendente lite on August 23, 2004, are incorporated by reference into the final judgment, as modified by the parties at the time of trial with respect to Christmas.
4. The defendant will pay to the plaintiff child support in the amount indicated by the Connecticut Child Support Guidelines, and agreed to by the parties, by way of a Contingent Wage Withholding Order. The child deduction shall be attributable to the defendant for federal tax purposes. This amount shall be adjusted to reflect a payment by the defendant to the plaintiff of twelve (12%) percent of his gross, monthly bonus, if any, within ten days of his receipt thereof. He shall include a copy of that portion of his pay stub which shows the gross amount of each bonus payment.
Based upon the child support guidelines, attributing this deduction to the defendant, the presumptive weekly amount of child support is $140.
"Twelve (12%) percent is the ratio of his weekly support payment to his gross income.
5. By agreement of the parties, the defendant shall continue to provide health insurance for the benefit of the minor child as is available to him through his employment at reasonable cost. The cost of any reasonable and necessary uninsured medical, dental, orthodontic, optical or psychiatric care for the minor child shall be borne by the parties on an equal basis after the expenditure of the first one hundred ($100.00) dollars by the plaintiff wife. Both parties agreed not to incur an uninsured medical cost in excess of $100.00 without further notifying and receiving consent from the other party except in the event of an emergency. Both parties agreed that such consent shall not be unreasonably withheld.
6. By agreement of the parties, the defendant shall contribute to the costs of necessary and reasonable childcare for the minor child on an equal basis.
7. The court shall retain jurisdiction over the issue of secondary education expenses for the minor child pursuant to Connecticut Statute.
8. The defendant husband shall have the right to claim the minor child as a tax exemption.
9. Each party shall insure their life with a benefit of at least one hundred thousand ($100,000.00) dollars naming the minor child as irrevocable beneficiary until said child reaches the age of eighteen (18) years provided such insurance is available to the party at reasonable expense.
10. The defendant shall quit claim all of his right, title and interest in the property located at 107 Pond Hill Road, Wallingford, Connecticut to the plaintiff wife.
11. The plaintiff shall be solely responsible and liable for the existing mortgage obligation, real estate taxes, insurance and other costs related to the ownership and maintenance of the above referenced property. She shall hold harmless and indemnify the defendant husband from any liability stemming therefrom.
12. The plaintiff shall execute and deliver a mortgage note and deed in favor of the defendant in the sum of $11,989, secured by the above-referenced property. Said note shall be payable to the defendant on the first occurrence of the following events:
a. The sale or transfer of the property;
b. The refinance of the current mortgage;
c. The plaintiff's failure to occupy said property along with the minor child as their primary residence, or until the minor child reaches the age of eighteen (18) years old, whichever event occurs earlier; or
d. The remarriage of the plaintiff.
If none of these events occur within one year of the date of this judgment, interest shall accrue at the rate of three (3%) per cent per annum, simple interest, retroactive to the date of judgment.
13. The defendant shall own free and clear of any claim from the plaintiff the real property located at 101 Old Colony Road, Unit 4-3, Meriden, Connecticut.
14. Each party is to retain sole and exclusive possession and ownership of whatever financial assets are currently in their names and/or reflected on their financial affidavits including bank accounts, pension and/or deferred income assets, with the exception of the American Express and Vanguard accounts, which were originally in the defendant's name and were made joint during the marriage. The plaintiff shall sign all forms necessary to return ownership of those accounts to the defendant husband.
15. Each party shall own free and clear of any claim from the other any deferred income assets and/or pensions in their respective name.
16. Each party will hold free and clear of any claim from the other the respective motor vehicle now in their possession. They shall be responsible for, and indemnify and hold harmless the other, for all obligations connected with the ownership and/or operation of said vehicle including car loans, property taxes, car insurance and the like. Each party will agree to sign and deliver all necessary forms or documents required to exchange title and registration documents.
17. Both parties shall have access to all family photographs and films existing as of the date of dissolution for the purposes of copying same. Upon demand of the party, the other will timely produce the photographs in his or her possession which have been requested. The requesting party will return the photographs and/or films once received within thirty (30) days of said receipt to the providing party in the same condition as received. During the time that the requesting party has the photographs or films referenced, he or she shall have professionally made any copies that he or she desires for his or her own familial use. The cost of making copies of such photographs and/or films shall be borne by the party seeking a copy of such photographs and/or films. This provision may be utilized for up to one year after the date of dissolution. Thereafter, it expires by lapse of time and neither party shall be obligated to provide the other any further photographs.
18. There shall be no alimony paid to either party.
19. Each party shall pay and save and hold harmless the other from any and all liabilities listed in their respective names and/or on their respective financial affidavits.
20. Each party is responsible for their own legal fees in connection with the above-referenced matter.
21. The plaintiff's maiden name of Peters is restored.
BY THE COURT
Mark H. Taylor, Judge