Opinion
HHDFA176080834S
03-22-2018
Steven D. FERRABELO v. Rita FERRABELO
UNPUBLISHED OPINION
OPINION
Adelman, J.T.R.
This dissolution of marriage action was heard by the court, commencing on March 5, 2018, and concluding on March 6, 2018. Both parties were represented by competent counsel. Both parties testified and the court also heard testimony from the sister-in-law of the parties and the plaintiff’s mother. The plaintiff offered fifteen items as evidence of which all but one entered as full exhibits. The defendant offered eighteen items into evidence of which twelve were made full exhibits. Fortunately, during the trial, the parties were able to resolve some of their contested issues and enter stipulated agreements. With the assistance of Mary Bergamini, who had been appointed by the court to act as guardian ad litem (GAL) for the minor children, a full parenting plan was stipulated to and made an order of the court (# 157.00). Later that day, the parties reached a second stipulated agreement as to child support and alimony, which the court accepted as an order of the court (# 158.00). As a result of the cooperation of the parties and their counsel, and with the very effective assistance of the GAL, this memorandum of decision will resolve only the issue of property division and other miscellaneous matters. The parties and their counsel are to be commended for their efforts to control the outcome of their dissolution in such critical areas of dispute.
A brief marital history is necessary to understand and give context to the remaining disputes. The parties met and dated in the late 1990s. The defendant became pregnant with the parties’ first child following her graduation from high school. That first child, a boy, is now of majority. He lives with the plaintiff. The parties began to live together shortly after the birth of that child and had a second child, another boy, in December 2004. They married on June 17, 2006, and their third child, a girl, was born in November of that same year.
The plaintiff is currently thirty-seven years old with no reported health issues. His training is in aviation mechanics and is currently employed as an airplane mechanic with Executive Jet Management in Chicopee, Massachusetts. He has been at his current position since November 2015. He earns a salary of $120,000 plus benefits including health insurance. There is no overtime available at this position, but he was able to earn an additional $6000 last summer maintaining a visiting airplane housed at his hangar. According to his testimony, that was the first and only time he had the opportunity to earn extra income.
Prior to his present employment, the plaintiff held similar positions with other employers. His first, which was prior to his marriage to the defendant, was with East Coast Aviation. He left that position for a better job. He has a small pension earned with East Coast Aviation. That asset has not been valued by either party but has been estimated to provide the plaintiff with a projected monthly benefit of $252 at age sixty-five. Next, he was employed by Key Air in Oxford, Connecticut for approximately ten years. That employment required, according to the plaintiff’s testimony, a daily round trip commute of approximately two hours. Clearly, his current position is best in terms of salary, commute, benefits, and flexible scheduling.
The defendant’s secondary education was interrupted by her first pregnancy. In 2016, she completed her associate’s degree in early childhood education at Manchester Community College and is presently working toward her bachelor’s degree online at Post University. The defendant testified that she is scheduled to complete that degree and graduate this spring. After the birth of the parties’ first child, the defendant occasionally babysat and then earned a pharmacy technician certificate at a community college. She worked at different pharmacies, mainly tasked with filling prescriptions for nursing homes and some data entry related to that job. She earned between $8 and $13 an hour at those jobs.
In 2008, the defendant, with the help of the plaintiff’s aunt, obtained a job at United Healthcare that paid a significantly better wage. By the time she left that company in 2012, she was earning $50,000 a year. A great deal of the testimony offered by both parties centered on the reason the defendant left that position, but the relevance of that disputed fact has been eliminated by the stipulated agreement as to the alimony order.
Since leaving United Healthcare, the defendant has worked as a pharmacy technician for other companies, but beginning with the academic year 2016-2017, she has been employed by the East Hartford school system in a non-teaching position. The defendant testified that, upon her graduation this spring, she plans to pursue her master’s degree and seek a career in teaching or counseling. She is currently earning $17.17 an hour. Because the defendant only works 218 days a year, she reports her annualized average weekly gross income at $515, but admits that when she is working her weekly gross income is $600.
The parties own a home located at 544 Rye Street in South Windsor, Connecticut. They purchased that property in 2006 using the profit they earned from the sale of a former property. The undisputed testimony was that in 2012 the parties wanted to expand their home to accommodate their growing family. They borrowed $50,000 from the plaintiff’s parents for renovations. The original repayment plan was to give the plaintiff’s parents $5,000 yearly from their anticipated tax refunds. The parties agree that the note was signed by them at the request of the plaintiff’s parents in February 2014. According to the testimony of the plaintiff’s mother, her husband wanted to have a note from the beginning and, when no agreed-upon payments had been made by the couple, they had their daughter, an attorney, draft a note. See ex. 8. A $5,000 payment was made at the time the note was completed. There is no doubt that a second payment of $5,000 dollars was made prior to the filing of this action, leaving a present balance due and owing of $40,000.
The testimony regarding the note is not consistent beyond the facts previously stated. Handwritten changes were made to the note. One change reduced the balance due and owing from $50,000 to forty-five thousand $45,000. The annual repayment of $5,000 was changed to " depends," and there is a dispute as where the note was executed and who was present at the execution. No one was able to testify as to who actually made the handwritten changes or whether the changes were made prior to the execution of note.
" It is well established that the evaluation of a witness’ testimony and credibility are wholly within the province of the trier of fact ... Credibility must be assessed ... not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude ... [It is the] trier of fact’s assessment of credibility because [i]t is the [factfinder] ... [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Citation omitted; internal quotation marks omitted.) Schoenborn v. Schoenborn, 144 Conn.App. 846, 851, 74 A.3d 482 (2013); see Emerick v. Emerick, 170 Conn.App. 368, 377, 154 A.3d 1069 (2017) (" [i]t is the trial court’s function to decide issues of credibility" ).
In the present case, the court has heard and observed three individuals testify on the issue of the note. Each appeared to be credible and honest in their recollection of the events and the underlying facts, but each had a vested interest in the outcome of the issue at hand. In other words, each witness had a clear bias. Fortunately, in this case, the significance of the note and its form is really of little consequence. All of the witnesses agree on the following: the money was requested; the money was provided; the parties used the money; the parties benefitted from the money; and the parties made past efforts to repay the money. Those facts are not in dispute. Thus, the debt is real and the obligation to pay the debt is a joint obligation of the parties.
The defendant in her closing remarks on this issue asked the court not to order her to repay the balance due, or one-half of the balance due, as part of the court’s equitable power in family matters. Her argument is premised on her claim that the appreciation of the property as a result of the renovations does not support the value of the money borrowed. The evidence indicates that the parties paid $273,000 for the home when they purchased it. At present time, the plaintiff sets the fair market value of the home at $300,000 with a present first mortgage balance of almost $195,000 (# 148.00). On her financial affidavit, the defendant sets the fair market value at $275,000 with a slightly higher mortgage balance than reported by the plaintiff. Neither party had an appraisal done to establish the value, but the defendant offered into evidence, over the plaintiff’s objection, the most recent appraisal of the property by the town of South Windsor (town). See ex. T. The town’s appraisal set the fair market value at $282,900. Conveniently, that value is almost equal to the average of the values attested to by the parties. The court finds that the town’s value is the fair market value as of this date.
Under the terms of the pendente lite orders, the plaintiff is paying the mortgage, and the court relies on his statement as to the actual present balance owed as being the more accurate.
On the basis of the town’s fair market value, the defendant argues that the property appreciated only $9,900 since they originally purchased it. As a result, she avers that her equitable liability to the lenders should be one-half of that amount, i.e., $4,950.
" The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute ..." Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975). There is no doubt that the court, using its equitable authority and powers, could enter an order on the basis of the defendant’s argument. That is not the question. The question is, would such an order be equitable? " [T]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 162, 622 A.2d 536 (1993). Discretion means " a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (Internal quotation marks omitted.) Hammerberg v. Leinert, 132 Conn. 596, 604-05, 46 A.2d 420 (1946). " For that reason, equitable remedies are not bound by formula but are molded to the needs of justice." (Internal quotation marks omitted.) McKeever v. Fiore, 78 Conn.App. 783, 788, 829 A.2d 846 (2003); Montanaro Bros. Builders, Inc. v. Snow, 4 Conn.App. 46, 54, 492 A.2d 223 (1985) (same). In determining what is equitable the court must look to the actions and impact on all parties. For example, in an application of the equitable doctrine of unclean hands, the court must examine and determine " that one who seeks to show that he is entitled to the benefit of equity must demonstrate that he comes to court with clean hands." (Internal quotation marks omitted.) Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980); Sachs v. Sachs, 22 Conn.App. 410, 416, 578 A.2d 649, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990). " [It] expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue." Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 525, 686 A.2d 481 (1996).
In the present case, the defendant’s request would leave an unfair burden on the plaintiff and on his parents who lent the money in good faith. Both parties borrowed and used the money; equity is not served by allowing them to be free of the debt after they had received the benefit. This, of course, does not even address the veracity of the defendant’s logic when she alleges that the current value of the real property compared to the original purchase price means that the value of the renovations is far below the cost expended. Many other factors play into the fair market value of a property in Connecticut between 2006 and 2018. Those factors are so well known to the property owners of this state that they need no further elaboration.
The remaining assets to be considered include the following: the plaintiff’s pension from his premarital employment; the plaintiff’s current 401(k) plan; the real estate owned by the plaintiff located at 109-111 Central Avenue, East Hartford, Connecticut; the real estate owned by the plaintiff located at 116-118 Heath Street, Hartford, Connecticut; the 2013 Chevrolet Silverado; the 2012 Acura MDX; the 2007 Chrysler; bank accounts; the household furnishings at the marital home; the plaintiff’s tools; and the parties’ anticipated federal tax refund for 2017.
The undisputed testimony at trial supports the plaintiff’s allegation that the investment property owned by the plaintiff in East Hartford was purchased prior to the marriage and that no joint funds have ever been expended to support that asset. Additionally, the defendant agreed that she has never worked at the property or for the benefit of the property, though she did get whatever benefit or liability the property produced in their annual joint tax returns. As a result, the court will consider 109-111 Central Avenue, East Hartford, Connecticut, as being a premarital asset that will not be commingled with the joint funds or assets, and it will not be part of the property division pursuant to General Statutes § 46b-81.
The property located at 116-118 Heath Street, Hartford, Connecticut, was purchased during the marriage, and although the same segregation of income and expenses existed for that property, it is subject to division as a marital asset. The equity in that property is $33,475, but the undisputed evidence presented at the trial shows that this property is owned in an informal partnership with the plaintiff’s brother. Although it is true that the title and the mortgage are in the plaintiff’s sole name, he and his brother have annually declared one-half of the income or loss on their respective tax returns. Accordingly, the court will consider only one-half of the available equity, i.e., $16,735, for purposes of the property division.
The undisputed evidence solicited at trial support the plaintiff’s claim that the pension earned at East Coast Aviation is a premarital asset and, accordingly, will not be considered in the property division calculations of the court. All other property and liabilities are to be divided in an equitable fashion pursuant to the statute.
Although the provisions of General Statutes § 46b-81 allow a court to consider all properties owned by the parties, despite title or date of ownership, it is common for a court to carve out premarital assets from the division if such property has truly been kept by the parties as a separate asset and not part of the joint property and if no joint funds or joint efforts have been made to support such property. The requirement is that the court consider carefully the criteria for the division of property as set forth in the statute. See generally Coleman v. Coleman, 151 Conn.App. 613, 95 A.3d 569 (2014) (synthesizing case law on this subject).
The parties had reached a pendente lite agreement as to the allocation for tax filing purposes for the tax year 2018 (# 135.00). The plaintiff seeks in his proposed orders that the court enter an order giving him that right and thereby enforcing the prior agreement. That provision, however, was not made a part of the final agreement as to alimony and child support payments (# 157.10), and, in fact, such language was specifically crossed out of the handwritten agreement presented to the court for approval. Pendente lite agreements or orders not made a part of the final judgment are not valid or enforceable after the judgment is entered. See Sweeney v. Sweeney, 271 Conn. 193, 1002, 856 A.2d 997 (2004). There being no valid agreement, the court will allocate the right to claim children for tax filing purposes in an equitable fashion.
The recent changes made to the IRS Code by the 2017 Tax Cuts and Jobs Act (TCJA); see 26 U.S.C. § 151(d)(4); no longer allow for personal exemptions, but there is still value in having children as dependents for the child tax credit. See 26 U.S.C. § 24(h).
" It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses ... It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action." (Emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010). The court has listened carefully to the witnesses and assessed their credibility. The court has reviewed all the exhibits and given them the appropriate weight. The court has applied all applicable law as explained and interpreted by our Appellate Courts. The court unseals all financial affidavits and takes judicial notice of all pleadings in the court’s file. Accordingly, the court makes the following findings of fact:
A. The court has jurisdiction over this matter;
B. All statutory stays have expired and the court may proceed to judgment at this time;
C. The truth of the allegations in said complaint have been proven;
D. The parties were married in Hartford on June 17, 2006;
E. Three children have been born issue of this relationship, two of whom are minors and one of whom is under the age of twenty-three (23);
F. The minor children are Gabriel, born in December 2004 and Leighana, born in November 2006;
G. Steven, who is now in his majority, was born in September 1999;
H. Neither party nor any of their children have been the recipients of state or municipal financial assistance since the date of the marriage;
I. Neither party is more at fault for the breakdown of the marriage than is the other;
J. Had the parties remained an intact family, they would have made all reasonable efforts to support their children in their post-secondary educational pursuits;
K. The parenting plan (# 156.00) approved by the court on March 6, 2018 (# 157.00) is in the best interest of the minor children and is fair and equitable to both of the parties;
L. The plaintiff is thirty-seven years old, in good health, and employed full-time at an annual salary of $120,000;
M. The defendant is thirty-eight years old, in good health, and employed full-time by the East Hartford Public Schools earning an hourly wage of $17.17 for a contractual work year of 218 days and thirty hours weekly;
N. The stipulation as to alimony and child support (# 157.10) is fair and equitable to both of the parties and the child support order is in accordance with the child support guidelines;
The guidelines are official regulations established by the Commission for Child Support Guidelines pursuant to General Statutes § 46b-215a and approved by the legislative regulation review committee pursuant to General Statutes § 46b-215c. See Regs., Conn. State Agencies § 46b-215a-1 et seq.
O. All financial calculations have been made based on the net income of each party regardless of the use of gross income. Such use of gross amounts was solely for the convenience of the court;
P. The parties had reached a pendente lite agreement as to the allocation for the tax year 2018 (# 135.00), but such a provision was not made a part of the final agreement as to alimony and child support payments and was specifically crossed out of the handwritten agreement presented to the court for approval;
Q. Pendente lite agreements or orders not made a part of the final judgment are not valid or enforceable after the judgment is entered;
R. The parties are joint owners of real estate located at 544 Rye Street, South Windsor, Connecticut;
S. The fair market value of said real property is $282,900 and the property is encumbered by a first mortgage debt with a principal balance of $194,878 leaving an equity value of $88,022;
T. The parties owe to the plaintiff’s parents a debt in the amount of $40,000, which money was borrowed to improve the marital property on Rye Street;
U. The plaintiff owns real property located at 116-118 Heath Street, Hartford, Connecticut with a fair market value of $170,000 and said property is encumbered by a first mortgage debt with a principal balance of $136,525 leaving an equity value of $33,475;
V. Said Heath Street property is equitably and equally owned by the plaintiff in partnership with his brother, therefore, the equity available for division is one-half the full equity or $16,375;
W. The plaintiff owns real property located at 109-111 Central Avenue, East Hartford, Connecticut with a fair market value of $150,000 and is encumbered by a first mortgage debt with a principal balance of $96,864 leaving an equity value of $53,136;
X. Said property has been cited for lead abatement by Town of East Hartford and the cost of said abatement is estimated to be $20,000, which reduces the current equity value of said property to $33,136;
Y. Said property is a premarital asset of the plaintiff and no joint funds have been used to support this property during the course of the marriage. Accordingly, it shall not be a part of the marital estate for the purposes of division pursuant to General Statutes § 46b-81;
Z. The equity value of said property at the time of the marriage was approximately $35,000;
AA. The plaintiff has a pension earned premaritally as part of his employment at East Coast Aviation and said asset is to be considered a premarital asset and not part of the marital estate for the purposes of division pursuant to General Statutes § 46b-81;
BB. The plaintiff has a deferred income asset in the form of a 401(k) plan earned during the marriage with his current employer with a vested interest valued at $78,576;
CC. The parties own three motor vehicles all of which are marital assets;
DD. All other miscellaneous property owned by the parties is part of the marital estate;
EE. The affidavit of fees and expenses filed by the GAL indicates she expended 53.5 hours on this matter billing at $250 per hour for a total of $13,375;
FF. A retainer for the GAL was paid from joint funds in the amount of $2,500 leaving a balance due and owing of $10,875; and
GG. Said fees and expenses are fair and reasonable in consideration of the level of expertise of the GAL, the complexity of the issues, and the equatability of fees charged by professionals with similar credentials.
In light of and in consideration of the factual findings enumerated above, the court hereby ORDERS:
I. The marriage of the parties is dissolved and they are each separate and individual persons;
II. The parenting plan (# 156.00) approved by the court (# 157.00) is hereby incorporated into this judgment in its entirety as if fully set forth herein;
III. The child support order as set forth in the agreement approved by the court (# 157.10 & # 158.00) is hereby incorporated into this judgment in its entirety as if fully set forth herein:
A. Said child support obligation is $400 per week;
B. Said obligation shall be paid in accordance with the provisions of said agreement.
IV. The plaintiff shall continue to provide medical and dental insurance coverage for the benefit of the minor children and the parties shall share any uncovered/unreimbursed medical and/or dental care, 58 percent the plaintiff and 42 percent the defendant in accordance with their child support agreement referenced above;
V. The court shall retain jurisdiction for any post-secondary educational expenses for any of the three children issue of the marriage in accordance with the provisions of General Statutes § 46b-56c;
VI. The alimony provisions as set forth in the agreement approved by the court (# 157.10 & # 158.00) is hereby incorporated into this judgment in its entirety as if fully set forth herein:
A. Said alimony obligation is $250 per week;
B. Said obligation shall be paid in accordance with the provisions of said agreement.
VII. For all tax filing purposes, both federal and state, the plaintiff may claim the youngest minor child for the child tax credit, if appropriate, pursuant to the IRS Code and the defendant may claim the older minor child:
A. When there is only one child eligible for such tax treatment the parties shall alternate each tax year;
B. The defendant shall have the first such opportunity and the plaintiff shall have that opportunity the following tax year.
VIII. For as long as the plaintiff has a financial obligation to the defendant and/or the children for alimony, child support, or post-secondary educational expenses, he shall obtain and keep a life insurance policy with a death benefit of $350,000 naming the defendant as the irrevocable beneficiary:
A. The plaintiff shall provide proof annually of the continued existence of said coverage upon written request by the defendant;
B. Said proof shall be provided no more than ninety days after the date of the written request.
IX. The plaintiff and the defendant shall execute all appropriate and necessary documents to convert their present ownership in joint survivorship of the real property located at 544 Rye Street, South Windsor, Connecticut to ownership in joint tenancy:
A. The parties are to prepare and execute a mortgage deed and note encumbering said property in the amount of $40,000 with no interest in favor of the plaintiff’s parents, Maria and Raul Ferrabelo, and with no defined payment schedule, said note shall be paid in full upon the sale or refinance of the first mortgage;
B. The cost of the preparation and recording of said title, mortgage, and promissory documents shall be paid by the plaintiff;
C. The defendant is to enjoy exclusive possession of said real property and shall be solely liable for the payment of all expenses associated with the ownership and possession of said property subject only to the provisions of the alimony and child support agreement (# 157.10);
D. Said property is to be listed for sale within sixty days after the minor child, Leighana, graduates from high school or turns 19, whichever is sooner:
1. The parties shall agree on a realtor to handle the listing;
2. The parties shall follow all reasonable recommendations of said realtor as to pricing, marketing, staging, and all necessary repairs;
3. Recommended repairs and/or staging costs in excess of $500 are to be shared equally by the parties. Such expenses costing $500 or less shall be the responsibility of the defendant;
4. The defendant shall cooperate with all reasonable requests for the showing and marketing of the property to buyers including but not limited to:
a. Keeping the property in appropriate condition to facilitate showings;
b. Making the property available for showings upon reasonable notice which shall be not less than twenty-four hours;
c. Allowing a sign to be posted on the property; and
d. Allowing a lockbox to be installed.
5. The defendant shall be responsible for and receive the benefit of all adjustments for water/sewer bills, utilities and the like;
6. The plaintiff shall be responsible for and receive the benefit of all adjustments for mortgage interest and real estate taxes;
7. The plaintiff shall receive any mortgage escrow refund paid due to the sale and payoff of the mortgage(s);
8. The provisions of ¶¶ IX.D.5, 6, and 7 shall apply only if the plaintiff is paying the mortgage as required by the child support and alimony agreement (# 157.10 & # 158.00). In the event that the agreement is no longer in effect, the liability and/or credits shall go to the party who actually made the required payments or who was responsible for making said payments;
9. All other normal closing expenses including but not limited to the payoff of the first and second mortgages, real estate commission, and legal fees shall be paid prior to the division of the net equity;
10. The defendant shall be paid eighty percent of the net equity as defined above and the plaintiff shall be paid twenty percent;
11. The defendant, as an alternative, shall have the right to purchase the plaintiff’s interest in said property by paying to him twenty percent of the equity net of the balance due on the first and second mortgages:
a. If the parties cannot agree on the fair market value of the property, they shall agree on a certified real estate appraiser and be bound by said appraiser’s value;
b. The cost of the appraisal is to be paid by the defendant;
c. Said appraisal must be completed and distributed to the parties no later than ninety (90) days from the triggering event as described previously in ¶ IX.D;
d. The defendant shall have a maximum of 120 days from the date of the appraisal to complete her purchase of the plaintiff’s interest in said property;
e. In the event of a buyout by the defendant, there shall be no consideration given to phantom closing costs and the equity determination shall only be calculated net of actual costs paid.
E. The court shall retain jurisdiction over the real property until the provisions of this section have been satisfied.
X. The plaintiff shall retain as his sole property free and clear of any claims by the defendant the following items:
A. His interest in the real property located at 109-111 Central Avenue, East Hartford, Connecticut;
B. His interest in the real property located at 116-118 Heath Street, Hartford, Connecticut;
C. The 2013 Chevrolet Silverado motor vehicle;
D. His individual bank accounts including but not limited to his checking account at American Eagle CU ending in 3845 with a current balance of $1,058;
E. His premarital pension account earned during his employment at East Coast Aviation;
F. His tools valued on his financial affidavit at approximately $7,000.
On their respective financial affidavits both parties report an individual checking account with American Eagle CU with an account number ending in 3845. They both claim the account is held in their name alone and is not a joint account. The only difference is that the plaintiff reports a balance of $1,058 and the defendant of $80. No evidence was presented that this was a joint account, but, if it is in fact jointly held, the plaintiff shall receive $1,058 and the defendant $80. If more money exists, it shall be shared equally between the parties.
XI. The defendant shall retain as her sole property free and clear of any claim by the plaintiff the following items:
A. The 2012 Acura RDX motor vehicle;
B. Her individual bank accounts including but not limited to her American Eagle CU checking account ending in 3845 with a current balance of $80;
C. Her East Hartford Board of Education deferred income account with a current balance of $2,000;
D. All household furnishings not specifically awarded to the plaintiff in ¶ XIII below.
See footnote 5 above.
XII. Each party shall hold harmless and indemnify the other from any and all liability stemming from the ownership, possession or use of any of the property as detailed in ¶¶ X and XI;
XIII. The plaintiff shall transfer to the defendant by a Qualified Domestic Relations Order (QDRO) 85 percent of the vested balance in his 401(k) account with Executive Jet Management valued as of the date of the dissolution of marriage judgment or as close to that date as is practical:
A. The division shall take into consideration all gains and/or losses in the value from the date of division to the final acceptance of said QDRO by the plan administrator;
B. Each party shall cooperate and execute all necessary documents to divide said asset in a timely fashion;
C. The parties shall share equally the cost of the preparation of said QDRO;
D. Any unvested portion of said asset as of the date of division shall remain the sole property of the plaintiff as shall any future contributions regardless of whether such contributions are made by the plaintiff or his employer;
E. The court shall retain jurisdiction over the QDRO until its final acceptance of said QDRO by the plan administrator.
XIV. The plaintiff shall have the right to remove from the marital home the following items of personal property:
A. The wine cooler;
B. Three living room tables claimed to be gifts from the plaintiff’s parents;
C. The Red Sox ornaments;
D. His maroon Portugal jacket and any of the plaintiff’s clothing still in the marital home;
E. The Celtic basketball hoop from the pool that belongs to the plaintiff’s cousin, David;
F. Miscellaneous building materials;
G. The cabinet with supplies and mechanical materials;
H. Any other items as agreed to by the parties;
I. Said items must be removed within sixty days of the date of the judgment at the plaintiff’s sole expense and the defendant shall provide the plaintiff a reasonable period of time in which to accomplish said task.
XV. Each party shall be solely liable for all debts not specifically allocated above and shall hold harmless and indemnify the other party from any and all liability thereon;
XVI. Each party shall be solely liable for their legal fees and expenses associated with this case;
XVII. The plaintiff’s obligation to pay the mortgage in lieu of direct child support (# 157.10 & # 158.00) shall be considered a duty to support the children and shall not be dischargeable in any bankruptcy filing made by him;
XVIII. The obligation of both parties to repay the loan to the plaintiff’s parents as detailed previously shall be considered a form of child support in that such loan has provided, in part, a home for the children and shall not be dischargeable in any bankruptcy filing made by either party:
A. In the event a bankruptcy court shall rule that the obligation of either party is indeed dischargeable in a bankruptcy filing, then such a ruling shall be considered sufficient grounds for the non-bankrupt party to seek a modification in the alimony order necessary to make that party whole;
B. Said order shall be considered in compliance with the agreement of the parties as to alimony and child support approved by the court (# 157.10 & # 158.00).
XIX. The GAL’s fees and expenses in the amount of $13,375 shall be paid jointly by the parties:
A. After giving credit for the retainer paid by the parties there is a balance of $10,875 due and owing;
B. Said balance shall be paid first by using the net tax refund received for the filing of their joint federal and state tax returns for tax year 2017, as stipulated to by the parties in their agreement (# 157.10);
C. Said payment shall be paid to the GAL promptly after the receipt of the anticipated federal refund and the payment of any taxes owed to the state;
D. Any remaining fees owed after said payment shall be shared equally by the parties in accordance with whatever payment arrangements are acceptable to the GAL and the parties;
E. In the event that such arrangements cannot be agreed upon, each party shall pay their share of the outstanding balance as set forth above no later than January 31, 2019.
XX. The appointment of the GAL shall be extended to March 6, 2019, as agreed by the parties and approved by the court (# 156.00 & # 157.00):
A. Any contact by a party with the GAL shall be at that party’s sole expense including but not limited to telephone calls, texts, and emails;
B. Any court appearance, meetings with the GAL’s wards or other time expended by the GAL postjudgment shall be shared equally by the parties; and
XXI. The parenting plan (# 156.00) shall be reviewed at a court hearing on August 29, 2018, to consider an increase in the plaintiff’s parenting time, or other changes, and the GAL is authorized by the parenting plan, and as part of her duty and in her sole discretion, to make unannounced home visits postjudgment.
SO ORDERED.