Opinion
No. TTD FA05 4003071-S
July 28, 2006
MEMORANDUM OP DECISION
By complaint of August 23, 2005, Nicole Grilley (Plaintiff or Wife) initiated this action seeking, inter alia, dissolution of her marriage to Robert Grilley (Defendant or Husband) on the ground of irretrievable breakdown. Husband appeared pro se but did not file a counterclaim and did not contest the allegations. Accordingly the court will enter judgment upon the plaintiff's complaint.
The court heard testimony over the course of one day in July 2006. Plaintiff's counsel has filed proposed orders and the court heard oral argument. In addition, the court reviewed and considered the exhibits, sworn financial affidavits, claims for relief, proposed orders and closing arguments.
Defendant did not submit proposed orders.
The sole witness for each side was the party. The court observed the demeanor of, and evaluated the testimony and credibility of, each witness. The court finds each of the parties to be generally credible.
The court has considered carefully the statutory criteria set forth, inter alia, in General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62, as well as the applicable case law in reaching the decisions reflected in the orders that issue in this decision.
The parties were married on February 7, 2004, in Sturbridge, Massachusetts, and the plaintiff has resided in Connecticut continuously for more than twelve months prior to instituting this action. The court has jurisdiction and all statutory stays have expired. The marriage has irretrievably broken down, without hope of reconciliation, and judgment will enter dissolving the marriage on this ground. This is the first marriage for Wife and the second marriage for Husband. The parties have no children issue of this marriage. No other children have been born to the Wife since the date of the marriage. Husband has one child, Jameson, issue of his first marriage.
Wife is now 29 years of age and was 27 at the time of the marriage. Husband is now 34 years of age and was 32 at the time of the marriage. Wife is in good health but suffers from occasional kidney and urinary tract infections which are symptomatic of polycystic kidney disorder. These infections are treated with oral antibiotics and do not require hospitalization. Husband is in apparent good health.
There is no evidence that Husband suffers from any mental or physical disabilities or impairments.10
10 Husband's mother.
Wife has a bachelor's degree from Lasell Institute and is currently enrolled full time at St. Joseph's College in a master's program leading to a degree in special education. She is presently unemployed. Husband has not completed high school. He is self employed as an arborist and earns a weekly gross income of approximately $600.00.
No evidence was adduced as to when or how the parties met, but by October 2002, they were residing together in an apartment in Bethlehem, Connecticut. On October 19, 2002, Danielle Grilley purchased a one and one-half acre lot at 39 Woodland Road, Bethlehem, Connecticut for the parties to use as a home site. As part of this purchase, Grilley also bought a prefabricated house kit for erection on the site. In total, to finance the purchase, Grilley signed a mortgage note and deed in the amount of $230,000.00. Neither the parties nor Grilley were required to make a down payment for the lot or house.
It was never Grilley's intent to gift the property to the parties. Rather the purchase was made in Grilley's name solely because Husband and Wife had insufficient credit. Thus although Grilley was the mortgagor, from April 2003-May 2005, Wife and Husband paid the mortgage and taxes from their joint income.
Husband and Wife separated in May 2005. Thereafter, Wife no longer contributed to the monthly mortgage payments.
In March 2003, a foundation was poured for the home. Thereafter the construction of the home took approximately two years, and the parties moved in in late 2004 or early 2005. In May 2005, Wife and Husband separated. During the marriage, Wife and Husband incurred approximately $20,000.00 in credit card debt for furnishings and other household expenses.
$11,000.00 to USAA Master Card and $9,300.00 to MBNA Master Card.
Before and during the marriage, Husband was employed as an arborist and earned $18.00-20.00 per hour. During his profession's seasonal layoffs, Husband collected unemployment compensation. In 2004, Husband earned approximately $30,000.00 in wages. Additionally Husband receives Social Security survivor's benefits on behalf of his son in the amount of $607.00 per month.
On or about August 2005, Grilley moved in with Husband and his son at 39 Woodland Road. Since that time Grilley has made approximately seventy-five to one hundred per cent of the monthly mortgage payments and in addition is paying the monthly telephone and cable television bills. Husband claims that he is presently unable to pay the mortgage, that in the future he will likely not be able to meet the monthly mortgage payments and it is likely that Grilley will not quitclaim 39 Woodland Road to him.
Husband is an admitted alcoholic. During the marriage he underwent approximately five weeks of in-patient substance abuse treatment at High Watch in Kent, Connecticut and also attended Alcoholics Anonymous. In March 2006, he was arrested for disorderly conduct and operating a motor vehicle under the influence of alcohol. Husband is presently on probation and his motor vehicle operator's license is suspended until 2007. As of April 2006, he was employed by Good Old Boys Tree Service, but appears to have lost this job when he was incarcerated. Husband is now self-employed in the tree service business. Husband is capable of continued full-time employment.
During the marriage, Wife was employed full-time as a pre-kindergarten teacher at First Steps Learning Center in Southbury, Connecticut earning $9.00 per hour. In 2004, Wife's salary was approximately $17,000.00. Wife continued her employment in this field until July 2005 when she quit to attend school. In 2005, Wife earned approximately $10,000.00. Wife presently resides with her parents in Ellington, Connecticut. Wife is currently receiving SEGA medical benefits from the State of Connecticut. Despite suffering from a polycystic kidney disorder, Wife is capable of full-time employment.
The Attorney General for the State of Connecticut has filed an appearance in this matter on behalf of the State's interest.
In November 2005, Grilley listed the marital home for sale with an asking price of $462,500.00. There is no evidence that any offers were received for the home and sometime thereafter, Grilley removed the house from the market. In preparation for trial, in March 2006, Wife hired a realty firm, Errol Flynn Century 21 Access America, to perform a comparative market analysis of the marital home. This analysis was introduced, without objection, as an exhibit in the trial. The realty firm compared four comparable properties in Bethlehem and recommended that the marital home be listed for sale at $308,400.00. Husband testified that within the past several months, he had the home appraised at $400,000.00.
Wife testified that the breakdown of the marriage was due to "lying and fighting." After an argument in May 2005 over the disciplining of Husband's son, Wife removed herself and her belongings from the marital home. For his part, Husband testified that his alcoholism caused "problems in the relationship" with Wife. Based on this limited testimony, the court is unable to find that either party was principally at fault for the breakdown of the marriage. Rather it is likely that general incompatibility and the parties' differing expectations caused them to grow apart.
Neither of the parties has any significant assets. Wife owns a motor vehicle and has two small bank accounts. Husband has a motor vehicle and no other assets.
Wife proposes that she receive $50,000.00 as reimbursement for her share of the parties' financial contributions to the marital home and for her share of the appreciation in the equity in the marital home. She also proposes that she retain her bank accounts and that each party retain the motor vehicle in his or her possession. Additionally Wife proposes that each party retain the personal property presently in his possession except Wife proposes that Husband return eight enumerated items to her.
According to Wife, the parties have jointly paid a total of $24,640.78 toward the mortgage, real property taxes, storage fees, Home Depot purchases, lighting, lumber, flooring and other expenses for the home. It is unclear from the evidence what, if any, portion of these expenses were made from personal funds as opposed to construction loan funds. Eg: Wife testified she believed that the kitchen appliances were bought from construction loan funds.
Although Husband did not file proposed orders, at the outset of the trial, he orally agreed to all of Wife's proposed orders with the exception of the proposed lump sum marital home settlement. Husband proposes that Wife be awarded $20,000.00 for her contributions toward the house and for one-half of the parties' outstanding credit card debt. Husband indicated that he could pay this sum to Wife at the rate of $400.00 per month.
See fn. 11, infra.
The difficulty with Wife's proposal of a $50,000.00 property settlement is two-fold. First it is unclear from the evidence how much of the parties' contributions to the household came from their own funds as opposed to the construction loan which was incorporated into the mortgage. Secondly, and more significantly, although Wife asserts that she has an interest in 39 Woodland Road, her interest is, not a vested property interest, but is, in fact, a mere expectancy.
See fn. 7, supra.
"[Conn. Gen. Stat.] § 46b-81 [assignment of property and transfer of title] applies only to presently existing property interests, not "mere expectancies." Bartlett v. Bartlett, 220 Conn. 372, 380-81. An expectancy is only "the bare hope of succession to the property of another — such as may be entertained by an heir apparent." Krause v. Krause, 174 Conn. 361, 365 (1978). "The term expectancy describes the interest of a person who merely foresees that he might receive a future beneficence . . . [T]he defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence." (Citations omitted; emphasis in original.) In re Marriage of Brown, 15 Cal.3d 838, 844-45. Krafick v. Krafick, 234 Conn. 783, 797 (1995).
In the present case, it is undisputed that neither party is, nor ever was, the legal owner of 39 Woodland Road. Rather, during the marriage, the parties had an expectation that if they paid off the entire mortgage, at some point in the future, Danielle Grilley would convey the property to them. This expectation was, however, never reduced to writing and there is no evidence that the parties detrimentally relied on this expectation. Thus Grilley has no presently existing legal obligation to convey this property to Husband or Wife. Therefore, the parties' interest cannot be deemed to be a property interest, subject to equitable division. Further even assuming that Wife's and Husband's financial contributions of $24,640.78 came solely from their own funds, the court is unable to find that the nature or the extent of Wife's and Husband's financial contributions from April 2003 — May 2005, entitle them, in equity, to share in any appreciation of the property.
There was no evidence presented that the parties contributed any "sweat" equity to the improvement of 39 Woodland Road. Additionally since the parties needed to live somewhere, if they had not been paying the mortgage, they would have been paying rent to a landlord.
As to liabilities, Wife's financial affidavit lists $22,183.00 in debts of which $17,483.00 are joint credit card debts of the parties and $4,700.00 is a personal loan to Wife. Husband's financial affidavit lists a $450.00 balance on a car loan. As to these liabilities, Wife proposes that the parties jointly share the credit card debt. Husband agrees with this proposal.
When Husband and Wife separated in May 2005, the credit card balance was approximately $20,301.00. Since that time, Wife has made $2,818.00 in payments toward this debt while Husband has paid $100.00 directly to Wife to reimburse her for her payments.
As to alimony, Wife proposes in the event that Husband does not pay her a lump sum of $50,000.00 that she receive $400.00 per month until Husband's financial obligations to her are paid in full.
Wife also proposes that Husband be ordered to maintain a life insurance policy for the benefit of Wife in the amount of seventy-five thousand ($75,000.00) dollars for the duration of any payment obligations to Wife. At trial, no evidence was adduced as to whether Husband's life is presently insured or whether life insurance is available to Husband and, if so, the cost thereof ". . . [I]f life insurance was not in existence at the time of the judgment, the court cannot craft an order regarding such insurance without evidence of the cost or the availability of the life insurance to the party ordered to purchase it. Michel v. Michel, 31 Conn.App. 338, 340-41 (1993). Without knowing the availability of such insurance, the trial court has entered an order with which the [defendant] may not be able to comply. Without knowing the cost of such insurance, the trial court has entered . . . financial orders that may be inappropriate, that is, too high or too low depending on the funds required to obtain such insurance.' Id., 341" Porter v. Porter, 61 Conn.App. 791, 805 (2001). In the absence of the proof required by Michel and Porter, the court declines to enter any order regarding life insurance.
Husband's financial affidavit indicates that he does not presently have any insurance.
Wife also proposes that the court award her attorneys fees for the cost of prosecuting this action. "In making its determination regarding attorneys fees, the court is directed by General Statute 46b-62 to consider the respective financial abilities of the parties. Murphy v. Murphy, 180 Conn. 376 (1980). Wife's financial affidavit lists savings and checking accounts amounting to $497.00. Although Wife's affidavit shows no current income, she is capable of employment and was employed during the marriage. At present her living expenses are being paid for by her parents with whom she resides. Husband has no assets and a weekly gross income of $600.00 per week. Under these circumstances, the court declines to award attorneys fees to Wife.
The court orders as follows:
1 — The marriage is dissolved on the grounds of irretrievable breakdown.
2 — All orders to take effect immediately, except as otherwise noted.
3 — Husband shall pay to Wife alimony of $100.00 per week for a period of 54 months, non-modifiable as to term or amount, except terminating earlier upon the death of either party. Thereafter, Husband shall pay $1.00 annually to the State of Connecticut, modifiable only by the State of Connecticut, for so long as the State of Connecticut has an interest in this matter. These alimony payments are intended to be spousal support and shall not be dischargeable in bankruptcy. These alimony payments are subject to a immediate income withholding order. Husband to notify Wife of any changes in employment status including employer's address and telephone number. Husband shall receive $1.00 per year alimony from Wife, modifiable only if Wife discharges the parties' USAA Master Card or MBNA Master Card debts in bankruptcy.
4 — As agreed to by the parties, Wife to retain the 2001 Ford ZX2 and Husband to retain the 2001 Nissan Frontier listed on their respective financial affidavits. Each party will promptly execute any documents necessary to transfer title to same. Each party is responsible for any debt or taxes attributable to their respective vehicles and shall indemnify and hold the other harmless with respect to any debt, taxes or other encumbrances for their respective vehicles.
5 — Each party to pay their own debts as listed on their respective financial affidavits and hold the other harmless and indemnify them as to same.
6 — As agreed by the parties, Husband to pay $119.00 to Wife within fifteen days as reimbursement for automobile insurance premiums.
7 — As agreed to by the parties, each party to retain the personalty now in their possession, except that Husband shall return to Wife, within thirty days, in good condition, the personal property listed on schedule "A" or pay Wife, within sixty days, $1,235.00 in replacement value.
CT Page 13563
8 — Each party to be responsible for their own medical and hospitalization insurance and unreimbursed medical bills.
9 — Except as otherwise specified in these orders, each party to retain those assets listed by them on their respective financial affidavits.
10 — No attorneys fees ordered.
11 — Wife's birth name of Nicole Damiano is restored.
12 — Plaintiff's counsel to prepare judgment file within thirty days.
SCHEDULE "A"
PERSONAL PROPERTY REPLACEMENT VALUE
six-foot tall bookcase $ 50.00 unopened crockpot $ 30.00 full set of navy blue towels $ 100.00 Nautica comforter and sham set $ 230.00 various picture frames (ceramic, floral and glass stand-up) $ 100.00 three engraved bowling balls $ 300.00 one-half photographs complete Disney movie collection $ 425.00 Snow White and the Seven Dwarves Pinocchio Fantasia Dumbo Bambi Cinderella Peter Pan Lady and the Tramp Sleeping Beauty 101 Dalmations The Jungle Book Robin Hood The Fox and the Hound The Little Mermaid The Little Mermaid II Beauty and the Beast Aladdin The Lion King Pocahontas Tarzan Casper Anastasia
Total = $1,235.00