Opinion
No. FA08 402 49 47 S
September 15, 2009
MEMORANDUM OF DECISION
The plaintiff husband is 47 years old and the defendant wife, whose birth name was Laurie Marie Wells, is 49 years old. They intermarried at Geneva, New York on July 4, 1992. There are two minor children issue of the marriage, Hannah W., born October 6, 1993 and Eliza C. Lynch, born July 2, 1996. The court has the requisite jurisdiction. Neither party has been the recipient of state assistance. The marriage has broken down irretrievably and is dissolved.
The parties have been married for approximately 17 years. They have two daughters who are excellent athletes and exceptional students. While both parties blame the other for the marital breakdown, each party is equally responsible for same. Essentially both parties have been unable to communicate with one another and this has been ongoing for several years. The disposition of this case is difficult because the husband, who has not had a great deal of financial success wants to keep the marital home intact until Hannah, the oldest of the two children, graduates from high school. She is presently starting her junior year. The wife is hard working and earns in a $70,000 to $80,000 range insists that the marital home be sold immediately because the parties cannot financially maintain the home and that foreclosure of the existing mortgage is imminent. The home needs substantial improvements but the funds are not available to do the necessary work. While the family lived frugally an examination of the parties' assets and income as well as expenditures leaves little light at the end of the tunnel. While the husband has published a book and has had some financial gain therefrom the chance of reversing the parties' financial plight are not encouraging. It should be noted that the parties do not communicate with one another but both want to remain in the house until it is actually sold. The Court will not upset that arrangement. The Court sees no alternative to an immediate sale of the marital home.
Before entering its orders the court must first dispose of defendant's motion for modification dated February 2, 2009 that is retroactive to February 4, 2009.
Based on financial affidavits submitted to the court the parties entered into a stipulation on December 12, 2008 that was on said date made a Court Order. The motion for modification was based primarily on plaintiff's substantial increase in income due to a book that had recently been published. During this time frame there had been some decrease in defendant's earnings. Based on the change of circumstances it is ordered that all of the financial obligations enumerated in the December 12, 2008 stipulation be paid as follows: 60% shall be the obligation of the plaintiff and 40% of these obligations the obligation of the defendant. This 60%-40% obligation shall continue until the date of transfer and sale of the marital home.
The Court has carefully considered the criteria set forth in § 46b-81 and 82 of the Connecticut General Statutes in entering its orders.
Orders
1. The marriage is hereby dissolved on grounds of irretrievable breakdown.
2. Custody
The parties shall share joint legal and joint physical custody of their minor children, Hannah W. Lynch (dob 10/06/1993) and Eliza C. Lynch (dob 07/02/1996) pursuant to the Parenting Plan, a copy of which is annexed hereto and marked "Exhibit A."
3. Alimony
The plaintiff shall pay periodic alimony to the defendant at the rate of $200.00 per week until the first of the following events to occur:
a. The death of either party; or
b. The defendant remarriage
c. Ten (10) years from the date of the dissolution of the marriage of the parties.
No alimony shall be paid to the plaintiff by the defendant.
4. Child Support
The plaintiff shall pay child support to the defendant at the rate of $135.00 per week. Child support shall terminate when each child obtains the age of eighteen (18) years, marries, dies, becomes employed full-time, being no longer enrolled high school or ceases to reside with the wife under circumstances where the wife is no longer furnishing the children's support or becomes otherwise emancipated, whichever first occurs. In the event that a child is still enrolled in high school on her eighteenth (18th) birthday, the obligation of support shall continue until one (1) week after graduation or until the child's nineteenth (19th) birthday, whichever shall first occur.
5. Marital Residence
The parties jointly own certain real property known as 163 Beechwood Avenue, Trumbull, Connecticut. Said real property shall be immediately placed on the market for sale through the Multiple Listing Service and continue to be marketed until sold. The net proceeds resulting from said sale after the usual and customary costs of sale including, without limitation, satisfaction of the existing first mortgage, home equity credit line, if any, brokerage commission, conveyance taxes and attorneys fees and expenses incurred to repair the premieres, if any, and the satisfaction of the defendant's Chase credit card and American Express credit card as reflection on her Financial Affidavit shall be divided equally between the patties. The Superior Court shall retain jurisdiction over all aspects of the sale of said real property including, without limitation, listing broker, the listing price and the sales price.
The plaintiff shall be entitled to a first option to purchase the defendant's interest said real property known as 163 Beechwood Avenue, Trumbull, Connecticut, by matching any bona fide offer made to purchase said real property by a prospective buyer within seven (7) days of the date of said offer.
However, in the event that plaintiff exercises a first option purchase, he must either refinance the existing first mortgage or obtain a release of liability releasing the defendant from any liability with respect to said first mortgage.
In order to exercise said first option to purchase, the plaintiff shall also be required to pay the defendant one-half of the net equity in the aforementioned real property which shall be defined as:
Purchase price:
Less: balance owed on the first mortgage; one-half of the balance owed on the defendant's Chase credit card which shall be paid simultaneously by the plaintiff when he exercises said first option to purchase; one-half of the balance owed on the defendant's American Express credit card which shall also be paid simultaneously by the plaintiff when he exercises said first option to purchase:
Less: 50% of any real estate commission that might be required. The plaintiff shall exercise said first option to purchase within 45 days of his written notification to the defendant that he is exercising his first option to purchase. Said written notification must be sent by the plaintiff to the defendant within four (4) days of any bona fide offer made by a prospective buyer to purchase said real property. Absent said written notification, the plaintiff's right to exercise said first option to purchase shall become null and void. A bone fide offer to purchase said real property made by a prospective buyer shall be defined as any offer to purchase within 2.5% of the then listing price containing standard conditions.
The Court shall retain jurisdiction over all aspects of the plaintiff's exercise of said first option to purchase.
6. Personal Property
In the event that the parties are unable to reach an agreement on the division of their personal property, the matter shall be referred to Jackie Barbara, Esq. for binding mediation. The cost of said mediation shall be borne equally by the parties and the fee shall be set by the court.
Motor Vehicles
The defendant shall retain the 1997 Toyota 4 Runner motor vehicle and the plaintiff shall retain the 1994 Isuzu Trooper and the 1990 Volkswagen Jetta vehicles. The parties shall execute whatever documents are necessary to effectuate the ownership of said motor vehicles as set forth herein. Any insurance premiums shall be adjusted effective the date of judgment.
Bank Accounts/Assets
a. Except as hereinafter set forth, each party shall retain the other financial assets set forth on their respective Financial Affidavits without claim against same by the other party.
b. The plaintiff shall pay to the defendant thirty (30%) percent of the value of his unsold books within thirty (30) days of the date of the dissolution of the marriage of the parties.
c. As the book authored by the plaintiff was authored by him entirely during the marriage of the parties, he shall be required to pay the defendant thirty (30%) percent of all income which he receives in the future from the sale of said book.
Deferred Compensation
The plaintiff has a Fidelity rollover IRA and a Great West Plan 401K having a total combined value of approximately $113,913. The defendant has a Fidelity 401K, an Atomic Learning 401K and a Scholastic Pension having a total combined value of $14,857. The value of the parties aforesaid deferred compensation assets shall be determined as of the date of the dissolution of the marriage of the parties and the plaintiff shall transfer to the defendant, pursuant to a Qualified Domestic Relations Order, if necessary, that portion of his Fidelity Rollover IRA so as to equalize the patties' deferred compensation assets taking into account adjustments for losses or gains until the date of distribution or account segregation.
In the event that a Qualified Domestic Relations Order(s) is needed to effectuate the division of the aforementioned deferred compensation assets, the parties agree that they shall utilize the services of Attorney Elizabeth McMahon to prepare said Qualified Domestic Relations Order(s). The cost of the preparation of Said Qualified Domestic Relations Order(s) shall be borne equally by the parties.
7. Post-Majority Education CT Page 15318
The Superior Court shall retain jurisdiction over the post-majority education of the children pursuant to C.G.S. § 46b-56c.
8. Medical Insurance/Unreimbursed Medical Expenses
Each party shall be responsible to maintain their own medical insurance at their sole cost and expense. The defendant shall cooperate with the plaintiff should he elect to maintain medical insurance for himself via COBRA at his own sole cost and expense.
The defendant shall maintain medical insurance for the benefit of the minor children as is available to her through her employment at reasonable cost. In the event that medical insurance is not available to the defendant through her employment at reasonable cost and same is available to the plaintiff through his employment at reasonable cost then the plaintiff shall maintain medical insurance for the benefit of the minor children of the parties. If neither party has medical insurance available to them through their employment a reasonable cost then, in that event, the parties shall secure medical insurance for the benefit of the minor children and the cost of same shall be borne equally by the parties. The defendant's obligation to maintain medical insurance for the benefit of the children of the parties shall continue for as long as medical insurance can be obtained for the benefit of the minor children through her employment at reasonable cost but not beyond the children attaining the age of 23.
9. Liabilities
The defendant's Chase and American Express credit card liabilities shall be paid equally by the parties out of the proceeds of the sale of the marital residence. Until the sale of the marital residence, each party shall pay one-half of the minimum monthly payment due with respect to said two credit card liabilities.
The defendant shall be responsible for the Lord Taylor credit card liability reflected on her Financial Affidavit.
Except as hereinbefore set forth, each party shall be responsible for the liabilities reflected on their respective Financial Affidavits and shall save harmless and indemnify the other party from same.
10. Taxes and Dependency Exemptions CT Page 15319
The parties shall file separate federal and state income tax returns for the years 2006 and 2008. Each party shall be responsible for their respective tax liabilities for said tax years.
Each party shall be entitled to claim one of the children of the parties as a dependency exemption on his or her federal and state income tax returns with the defendant claiming the youngest child and the plaintiff claiming the eldest child. Once the eldest minor child of the parties is no longer eligible to be claimed as a dependency exemption, the parties shall alternate claiming the youngest minor child as a dependency exemption with the defendant claiming the child in even numbered years and the plaintiff claiming the child in odd numbered years.
For the years 2006 and 2008 each party shall be entitled to claim fifty (50%) percent of the amounts paid by the parties for real estate taxes and mortgage interest during said years on their respective federal and state income tax returns.
11. Life Insurance
Because of the serious problem of insurability the plaintiff shall not be required to maintain a life insurance policy.
12. Attorney Fees
After the extensive litigation the husband has paid $30,000 to date and the wife has paid $5,000 toward their respective attorney fees. The court orders that husband shall pay an additional sum of $15,000 toward wife's attorney fees from his share of the proceeds of the sale of the real estate.
13. Miscellaneous
Neither party shall use any recording or surveillance device while they continue to reside in the family home nor shall they eavesdrop on the other's telephone calls.