Opinion
FBTFA156048231
09-23-2016
Tracy Mate v. Glenn E. Mate, Sr
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Gerard I. Adelman, Judge
This dissolution of marriage matter was tried over seven days commencing on May 4, 2016 and concluding on August 31, 2016. Both parties were represented by counsel and there was a Guardian ad litem (GAL) for the minor child. The vast majority of the testimony came from the two parties. A real estate appraiser and a certified public accountant testified very briefly. The final witness was the GAL. Many exhibits were entered as evidence by both sides: The plaintiff submitted 43 full exhibits; the defendant submitted 32.
There is little dispute about the facts in the early years of the relationship. The parties were married on April 26, 1999 after a brief courtship. This was the first marriage for the plaintiff, but a second marriage for the defendant. The defendant had been divorced from his first wife for six years prior to this marriage. He has two sons from that first marriage. The plaintiff testified that she was very happy to help raise his children; she was excited to be a stepmother.
The plaintiff worked for a magazine publishing company as a quality assurance associate at the time of the marriage. The defendant had lost his job before the marriage and was collecting unemployment. He also worked under the table doing painting for his brother. Later he and his brother started a power washing business which was not successful. He took courses in an effort to obtain licenses that would allow him to work in the financial world, but according to the plaintiff, despite taking many courses, he never obtained the necessary licenses and never earned any money in that field. He also tried his hand at contracting and home improvement. That effort was not successful in the long run.
The defendant, at the suggestion of the plaintiff, joined the local volunteer fire department in part to obtain referrals for his construction business. After the attacks on September 11, 2001, the defendant became more active. His volunteer role required much training with no financial compensation, but in 2005 he was hired as a professional firefighter. Once on this career path, the defendant's prospects brightened. In addition to his firefighting position, he obtained certifications to teach firefighting and to act as a fire marshal. The defendant has remained in that career to the present.
The plaintiff was able to expand a temporary job assignment in 2002 into a full-time job. She continued with that company until 2010 when the company decided to close. During her last year the plaintiff testified she earned approximately $45,000 net of taxes and received a severance package of $46,000 which was paid in a lump sum. On cross examination by the defendant, she acknowledged after reviewing some documents to refresh her recollection, that in 2008 she earned $87,000 gross and was working toward a gross income of $90,300 in 2010, but the company closed before the year was complete. At home with their child, the plaintiff began to develop a business selling purses and organizational items through home parties and by recruiting others to work for her in in a multi-level marketing plan often referred to as a pyramid sales group. Under such an organization, the plaintiff would earn income from her own sales as well as commission from the sales of those individuals below her. The larger the group--the pyramid--the more potential income. In 2011 she earned a meager $15,000 gross of taxes and business expenses, but her income continued to grow with time and effort. She leased space outside of the home; in part because she alleged the defendant resented having all the shipments at the house, but also to grow her business. In 2012 the plaintiff signed a three-year lease for office space. She also created a limited liability company (LLC) to sublet part of her space to offset the costs. According to the plaintiff's testimony, by 2012-2014 she would work approximately 400-500 hours a month at her business, but claims to have continued as the primary parent for their young daughter.
This is an extraordinary number of hours to have worked on a consistent basis. In order to achieve the number of hours testified to by the plaintiff she would have had to have worked approximately fifteen (15) hours each day seven days a week. By way of comparison, a traditional full-time job, i.e., an eight-hour day five days per week, would equal 173 hours per month.
Since the institution of the dissolution the plaintiff's income has decreased considerably. She estimated that her gross income for 2015 was probably between $50,000 and $60,000, but her year to date estimate for 2016 was only $12,000. According to the accountant who has prepared her taxes in the past, the direct sales had been decreasing annually since 2013. Called as a witness by the defendant, he believed that her income would be less for 2015 because the plaintiff was doing less of her own sales and relying on commissions earned from her team. He admitted that his last direct work for the plaintiff was about two years ago when he prepared her 2013 tax returns, but that he had reviewed the business records she supplied to the defendant during discovery. Using those documents, he created profit and loss statements for her business for the years 2013-2015. His calculations show that the plaintiff has income, net of business expenses, of just under $27,000 in 2013, a little over $50,000 in 2014 and slightly more than $32,000 for 2015. Despite the limitations of this expert's work given the fact that he has had no direct contact with the plaintiff recently, it does demonstrate that she has the ability to earn a reasonable income even working only half time. It is not unreasonable to expect that once this litigation is completed and the plaintiff can devote more of her time to her business that she will return to a more profitable position.
The question of the defendant's income was also of major concern during the trial. It was the plaintiff's position that he had purposely reduced his income in anticipation of the trial. She testified that prior to the commencement of the divorce, he worked at his various jobs all the time. It was the plaintiff's testimony that the defendant did not contribute to the family finances and was constantly pursuing additional fire fighting certifications. She complained that he was very secretive about his earnings, but admitted when pressed that in 2009 they were both earning approximately $60,000 gross per year. She admitted that when she was laid off in 2010 due to her employer closing the business, the defendant took over payment of the mortgage while she continued to pay many of the other household bills.
While she supported all of the defendant's efforts to improve his professional standing and to promote his career as a fire fighter and instructor, she claimed that the defendant did not support her efforts to grow her sales business. She testified that he complained about all the deliveries and the clutter in the house. She alleged that she rented separate space for her business because he complained to her repeatedly.
The defendant's primary employment is as a fire fighter/EMT for the Town of Guilford. The defendant also holds certification as a Hazmat Technician and is a member of New Haven Area Special Hazardous Response Team as well as the Fairfield County Hazardous Response Team. He is also a deputy fire marshal for the Town of Monroe and acts as an instructor at the Fairfield Fire Training School. Additionally, he is an adjunct instructor at the Connecticut Fire Academy located in Windsor Locks as well as an instructor for two different training organizations offering classes in firefighting and related areas. The fire marshal work and the instructor work on an as needed basis is not steady employment. The defendant testified, and no evidence was offered to refute his claim, that the Fairfield Fire Training School is not currently in operation as it is being rebuilt. He has no income from that work for 2016. He testified that other teaching-related work is on an as needed basis and although he has applied for open and posted positions, he has not been called recently. It was his testimony that there were 130-150 adjunct instructors on the qualified list for the Connecticut Fire Academy including him.
The defendant is the owner of ESPIC, LLC which he formed in the fall of 2013. His business provides mentoring services, guidance and consulting to individuals in the emergency services field. At the time of the trial, the defendant reported that he had not earned any income from this business for the last eighteen months, but he was experiencing a benefit in his income tax reporting due to business losses experienced. Questioned by the plaintiff about expenses claimed as they relate to the business, the defendant acknowledged that he had purchased insurance, purchased shirts with the business logo on them and joined various organizations to network with other professionals. Other than having the defendant acknowledge that he probably ordered more shirts than necessary, the plaintiff was not able to elicit any testimony nor offer any evidence that the defendant was indeed earning income from this venture.
The court found both parties to be credible witnesses who were relatively forthright in their testimony at trial. " 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010). However, neither party was successful in persuading the court that the other was purposely limiting their income for the purpose of the litigation. Both parties have the potential to support themselves appropriately although the plaintiff is currently more limited in her income than is the defendant. The court does not see any reason why, in a brief period of time, she would not be able to rebuild her sales business. Neither her present waitressing job, nor her parenting duties under the court's parenting plan, should significantly impair her efforts in that regard from a purely time allocation issue.
Both parties filed several financial affidavits during the course of the trial as the extended length of the litigation required financial updating. The defendant's last affidavit dated August 29, 2016 (#209), reported gross income from his primary employment of $1,264.59 per week and an average income of $39.43 per week from his fire marshal position in Monroe. The plaintiff's affidavit (#208), dated March 3, 2016 was updated--or amended in the plaintiff's words--on August 22, 2016. She reports gross income of $570.01 which is a combination of her average income from her home sales, her recent work as a waitress and $75 per week in pendente lite alimony from the defendant.
The custody issues that were raised in this matter are more about scheduling than anything else. There are no legitimate claims of poor parenting or a lack of competence to properly care for and protect their daughter. The plaintiff's position is that she was always the primary parent and that the defendant's involvement only dates to the start of the litigation. The defendant denies that allegation and points to his considerable time off as a fire fighter. As most in that profession, the defendant works one day and is off for the next three. His on shift is for 24 hours and he works every fourth day. The GAL testified about this point of conflict and reported that all the child's providers found both parents to be equally involved. The pediatrician actually reviewed the child's file with the GAL to determine that over the last 12-13 office visits, each parent brought in the child an equal number of times. Of course, even if the plaintiff's claim is true, circumstances change when a couple separates. It is certainly not uncommon in a family for one parent to be the primary breadwinner and the other to be the primary parent and homemaker. While that might work well for an intact family, when that arrangement is shattered it also ends that former arrangement. The former homemaker may be required to seek work outside of the home and the former primary breadwinner may be eager to have a meaningful amount of parenting time now that the parents live separately and access to the children is not a casual and uncontrolled event.
A good deal of the conflict regarding parenting during the pendente lite phase of this case was the result of a pendente lite agreement to give each parent what is commonly referred to as a " right of first refusal." This concept is based on the idea that a child should be with a parent rather than a third party if a parent must be away due to employment, school or social responsibilities. The parties will typically agree on a triggering time such as four hours or overnight, and if the parent scheduled to have the child in his or her care must work--or not be available to parent for some other reason--than that parent is to notify the other parent and offer to have that other parent take the child for the specified period of absence. In this case the triggering time was four hours. The plaintiff complained that the defendant would frequently have to work and would leave the child with his parents or his current girlfriend. The defendant had similar complaints about the plaintiff, but not as many. Neither party was able to prove their allegations nor convince the court that the alleged violations of the agreement were commonplace and frequent.
In the opinion of this court, the " right of first refusal" concept is not one designed to protect the best interests of the minor child in most cases. Too many times it is used by one parent to attempt to control or interfere with the other parent's postjudgment life. Certainly a time period as short as four hours is most intrusive, it is difficult for some parents to accept the fact that after a dissolution, when each parent is caring for the child separately, the other parent is capable of making appropriate decisions regarding child care. It is often not in the child's best interests to go back and forth between the parent too frequently; it is best to preserve the preset schedule whenever possible. Of course such arrangements can work well for very cooperative co-parenting parties and it could be appropriate if one parent is to be away from home for an extended period of time, but the parties in this matter have not demonstrated good co-parenting communication or cooperation. The right of first refusal is not appropriate in this case.
The GAL has recommended a sharing of physical as well as legal custody based on her conclusion that both parties are more than competent parents and that the child is strongly bonded with both of her parents. It is her opinion that these parties can make such an order work for the benefit of their minor child. " [Section 46b-56a], read as a whole, reflects a legislative belief that joint custody cannot work unless both parties are united in its purposes." Emerick v. Emerick, 5 Conn.App. 649, 658, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986). Accordingly, she has proposed what is commonly referred to as a " 2-2-5 schedule" in which one parent would have the child Mondays and Tuesdays, the other would be primary parent on Wednesdays and Thursdays and they would alternate the weekends. The exchange of the child under such a schedule can most often be done by picking the child up from school and returning the child to school when appropriate. This eliminates much of the face-to-face meeting of the parents and removes the child from any arguments that may erupt during the exchange. Given the flexibility of both parents in their schedules at this time, such a schedule would be very appropriate.
The defendant testified that his schedule is set a year in advance since it is a constant rotation schedule and that he is able to either switch shifts or use vacation time to ensure his parenting is consistent. The GAL confirmed that such flexibility is true in an interview with the defendant's commanding officer. The plaintiff is self-employed with her sales work and testified that she can pick her waitressing shifts. She told the court that she accepted the job at the restaurant where she works because they allow her to pick shifts around her parenting responsibilities.
The parties are joint owners of the marital home located at 584 Moose Hill Road in Monroe, Connecticut. They purchased the home in 2001. According to the testimony of the plaintiff, she was the driving force in the decision to move to a home while the defendant was more interested in purchasing a condominium which he believed would require less work to maintain. However, she also testified that it was the defendant who selected this particular property and that she did not want to buy it but eventually agreed. They paid $217,000 for the home with a first mortgage in the original principal amount of $170,000 and what she referred to as a second mortgage for $30,000. The defendant testified that there was no second mortgage although the couple did borrow some money from his parents and were gifted some money. At this time, neither party is claiming that a second mortgage exists and both agree that whatever money was lent to them by the defendant's father has been satisfied. No evidence of any such past encumbrance was produced as evidence during the extensive trial. The parties did refinance the property several years ago. The present balance on the mortgage is approximately $273,000.
The property was in the plaintiff's name only because the parties wanted to shield the property from any liability that might arise from the defendant's contracting business. There is no claim that the real estate is not part of the marital estate under General Statutes § 46b-81. The mortgage is in both names.
The defendant was nut granted exclusive possession of the marital home until October 1, 2015 although his motion (#133) was filed in mid August, but the testimony was that they were not cohabitating at the marital home beginning in June 2015. The cause of change was the subject of much testimony regarding the failure of the " nesting" arrangement memorialized in the April 2, 2015 stipulation (#118). Much of that testimony was of little probative value to the court other than to demonstrate the inability of the parties to effectively communicate. The plaintiff reported the balance to be $280,000 on her financial affidavit, but testified that the defendant has been paying that expense. Accordingly the court will rely on the balance reported by him as being more accurate and current.7
The value of the property was disputed by the parties. The plaintiff put a value of $350,000 on the property on her financial affidavit while the defendant used $275,500 as the present fair market value. The defendant called a real estate appraiser as an expert witness to testify as to the value of the property. That expert testified that the fair market value of the property as of March 15, 2016 was $290,000; after some very limited cross examination, that testimony was not disputed by the plaintiff. The court will accept the expert's opinion as to value which would result in an anticipated equity of $17,000 gross of any sale or transfer expenses.
The evidence solicited at trial showed that at the present time the property is in violation of the Town of Monroe's inland wetlands regulations. The parties had been properly cited and ordered to bring the property into conformity with said regulations. Although the plaintiff testified that since she has been out of the home, she is not in control of, or knowledgeable about, the current situation. That specific portion of her testimony was not credible as the exhibit she entered into evidence shows that this problem dates back to 2010. Additionally, the defendant testified that both parties attended a hearing that was held by the town in June 2016; the plaintiff does not dispute that she was there. The defendant offered a plan to remediate the problem while the plaintiff asked for more time given the pending divorce litigation. The town ordered remediation within sixty (60) days and imposed a fine of $150 per day as of June 16, 2016, with the right to increase the daily fine to $1,000 if necessary. The defendant has done the work to correct the problem himself after receiving proposals from contractors that were quite expensive. His testimony was that he spent $4,000 on the materials necessary to complete the project. As of the last trial date, he was waiting for the town to sign off on his work and fully anticipated the matter would be considered resolved by the town without the payment of any fines. The plaintiff complained that the defendant did the work without consulting her or getting her approval. The defendant argued that he did inform her, but she told him that she had no ability to help fund the work.
This issue is really of little importance in the dissolution of marriage as the parties faced serious financial liability to the Town of Monroe for a problem that was created well before the case was commenced. It had to be remediated and it would appear the cost of the work done was not unreasonable. This certainly does not rise to a violation of the automatic orders and that claim was not even made by the plaintiff. It is not at all clear why the issue was raised other than to demonstrate a lack of communication between the parties.
The plaintiff is seeking reimbursement for expenses she claims to have paid over the years without any compensation from the defendant. During her testimony she detailed that the defendant did not contribute to family expenses from 2011-2014 in an amount claimed to be some $45,000 in credit card debt. During that time it is the plaintiff's position that the defendant paid the mortgage and she took care of all other household expenses. The defendant has demands of his own for credit card debt and for reimbursement of expenses for the child that have not been honored. It is clear from the testimony of both parties that they tended to live above their financial means throughout the marriage. In the past, they relied on loans and gifts from parents, credit cards and a credit union to stay afloat financially. The plaintiff withdrew all of her deferred income assets to pay her bills. Once the parties separated, the sharing of expenses was exacerbated, especially since the formal order for exclusive possession of the martial home was not granted until more than five months after their informal separation. Given the fact that much of the debt for which the plaintiff seeks reimbursement was incurred when the parties were an intact family living under a financial arrangement that had existed for some time, and that the defendant paid alimony to the plaintiff during the pendente lite portion of the case, the court cannot find a meaningful rationale to support an allocation of debt arrangement, and given the fact that both parties have significant liabilities, it would seem more appropriate for each party to be responsible for their own debts.
The issue of whether or not the parties would have children, and if so how many, was a point of contention between them. The plaintiff's expectation was that they would have a large family including the defendant's two older children from his first marriage. While that may have been the defendant's original expectation as well, the evidence indicates that the marriage was in trouble certainly by the fifth or sixth year into the relationship. The defendant filed for dissolution of the marriage in 2005 (FRT-FA05-4011696-S Glenn E. Mate v. Tracy L. Mate ), but allowed the matter to be dismissed in 2006. Difficulties conceiving a child certainly must have added to the stress of the couple, but by using in vitro fertilization they were successful in having a child in May 2009. There are also unused embryos from that process that have been maintained in a frozen state since 2009. The future use of these embryos is an issue in this matter. The plaintiff is asking the court to give her control over the remaining embryos while the defendant is adamant that he does not want any future children to be born as the result of their marital relationship. The defendant is seeking an order to destroy the embryos or, in the alternative, have the court make a finding that any child born from the embryos in question not be a child of the relationship; and that the defendant would not be the father or have any support obligation. As a final alternative, the defendant requests that the ownership and control of the embryos be awarded to him. Neither party provided any case law to the court to support their respective positions.
This is a case of first impression in our state. There is no Connecticut case law on point. A 2013 Appellate Court of Illinois decision provides the necessary guidance for this determination. In Szafranski v. Dunston, 2013 IL App. (1st) 122975, 993 N.E.2d 502, 373 Ill.Dec. 196, cert. denied, 996 N.E.2d 24, 374 Ill.Dec. 577 (2013), the court considered " who controls the disposition of cryopreserved pre-embryos created with one party's sperm and another party's ova." Id., 506. As the issue was one of first impression in Illinois, the court looked outside of Illinois and explained that " [c]ourts in other jurisdictions have addressed this issue under various circumstances and generally conducted three types of analyses in resolving this question: (1) a contractual approach; (2) a contemporaneous mutual consent approach; and/or (3) a balancing approach." Id.
" [T]he contractual approach has been applied/endorsed in [New York, Oregon, Tennessee, Texas, and Washington]." Id., 507, citing Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998); In re Marriage of Dahl, 222 Or.App. 572, 194 P.3d 834 (Ore.App. 2008); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), cert. denied, 507 U.S. 911, 113 S.Ct. 1259, 122 L.Ed.2d 657 (1993); Roman v. Roman, 193 S.W.3d 40 (Tex.App. 2006), cert. denied, 552 U.S. 1258, 128 S.Ct. 1662, 170 L.Ed.2d 356 (2008); and In re Marriage of Litowitz, 146 Wn.2d 514, 48 P.3d 261 (2002), amended by 53 P.3d 516 (Wash. 2002). The Szafranski court also concluded that " the proper test to apply is the contractual approach." Szafranski v. Dunston, supra, 993 N.E.2d 517.
" Under [the contractual] approach, courts will enforce contracts governing the disposition of pre-embryos which were entered into at the time of in vitro fertilization so long as they do not violate public policy." Id., 506. " As noted by the Court of Appeals of New York; '[P]arties should be encouraged in advance, before embarking on [in vitro fertilization] and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of (in vitro fertilization] programs [citations] . . . To the extent possible, it should be the progenitors--not the State and not the courts--who by their prior directive make this deeply personal life choice.' Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 180, 673 N.Y.S.2d. 350 (N.Y. 1998)." Szafranski v. Dunston, supra, 993 N.E.2d 506-07.
In Kass, the parties enrolled in a hospital's in vitro fertilization (IVF) program. Kass v. Kass, supra, 91 N.Y.2d 557. Before participating in a procedure that included cryopreservation, the couple signed four consent forms. Id., 558. As part of a form labeled " ADDENDUM NO. 1-1, " the couple indicated, by signing their initials where noted, that excess eggs were to be inseminated and cryopreserved for possible use by the couple during a later IVF cycle. Id. A third consent form stated: " We have the principal responsibility to decide the disposition of our frozen pro-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage." (Internal quotation marks omitted.) Id., 559. By initialing a final consent form, the couple agreed that, in the event that they no longer wished to get pregnant or could not make a decision, embryos would be donated to research. Id. Later, with divorce imminent the parties drew up and signed an " uncontested divorce" agreement, which confirmed the earlier signed consent forms and explicitly stated that neither of the parties could lay claim to custody of the embryos. Id.
Affirming a plurality decision, the Court of Appeals of New York found that " the parties clearly expressed their intent that in the circumstances presented the pre-zygotes would be donated to the IVF program for research purposes." Id., 562. The court stated: " Agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them." Id., 565. It continued: " Here, the parties prior to cryopreservation of the pre-zygotes signed consents indicating their dispositional intent. While these documents were technically provided by the IVF program, neither party disputes that they are an expression of their own intent regarding disposition of their pre-zygotes. Nor do the parties contest the legality of those agreements, or that they were freely and knowingly made. The central issue is whether the consents clearly express the parties' intent regarding disposition of the pre-zygotes in the present circumstances." Id., 566. Applying New York contract law, the court concluded that " that the informed consents signed by the parties unequivocally manifest[ed] their mutual intention that in the present circumstances the pre-zygotes be donated for research to the IVF program." Id., 567. In coming to this conclusion, the court viewed the consents as a whole and noted " that [the parties] intended that disposition of the pre-zygotes was to be their joint decision. The consents manifest that what they above all did not want was a stranger taking that decision out of their hands. Even in unforeseen circumstances, even if they were unavailable, even if they were dead, the consents jointly specified the disposition that would be made. That sentiment explicitly appears--and again throughout the lengthy documents. Words of shared understanding--'we, ' 'us' and 'our'--permeate the pages." Id.
Like in Kass, the court in Davis v. Davis, supra, 842 S.W.2d 588, endorsed the contractual approach and emphasized the importance of recognizing an agreement between the parties. Id., 604. In the absence of any such agreement, however, the court was forced to resort to a balancing approach. Id., 603-04. The most instructive Connecticut case, a Superior Court decision, addressed a different issue, but relied on Davis as a source of the law governing the disposition of frozen embryos. See Janicki v. Hospital of St. Raphael, 46 Conn.Supp. 204, 217-19, 744 A.2d 963 (1999) .
As Kass demonstrates, courts that adopt the contractual approach evaluate subject agreements based on state contract law. " To form a valid and binding contract in Connecticut there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration the contract is not complete . . . A contract requires a clear and definite promise." (Citations omitted; internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 627, 760 A.2d 969 (2000); see also Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104, 837 A.2d 736 (2003) (noting that a contract must be supported by consideration to be binding). Accordingly, a disposition agreement that does not meet these requirements is not enforceable.
Similarly, if an agreement is against public policy, it is not enforceable. For example, in A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051 (2001) " the Supreme Judicial Court of Massachusetts declined to honor the parties' advance agreement regarding the disposition of pre-embryos on the grounds of public policy." Szafranski v. Dunston, supra, 993 N.E.2d 510. In A.Z., a husband and wife " signed a consent form stating that if they '[s]hould become separated, [they] both agree[d] to have the embryo(s) . . . return[ed] to [the] wife for implant.' . . . [The Supreme Judicial Court of Massachusetts] concluded: '[E]ven had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen pre-embryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement.'" (Citations omitted; internal quotation marks omitted.) Szafranski v. Dunston, supra, 993 N.E.2d 510.
" [The contemporaneous mutual consent] approach proposes that 'no embryo should be used by either partner, donated to another patient, used in research, or destroyed without the [contemporaneous] mutual consent of the couple that created the embryo.' . . . Under this approach, advance instructions would not be treated as binding contracts. If either partner has a change of mind about disposition decisions made in advance, that person's current objection would take precedence over the prior consent. If one of the partners rescinds an advance disposition decision, and the other does not, the mutual consent principle would not be satisfied and the previously agreed-upon disposition decision could not be carried out . . . When the couple is unable to agree to any disposition decision, the most appropriate solution is to keep the embryos where they are--in frozen storage. Unlike the other possible disposition decisions--use by one partner, donation to another patient, donation to research, or destruction--keeping the embryos frozen is not final and irrevocable. By preserving the status quo, it makes it possible for the partners to reach an agreement at a later time." (Citation omitted; internal quotation marks omitted.) Szafranski v. Dunston, supra, 993 N.E.2d 510-11. " Iowa is the only state to have expressly adopted the contemporaneous mutual consent approach." Id., 511, citing In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003).
" Under [the balancing] approach, courts enforce contracts between the parties, at least to a point, then balance their interests in the absence of an agreement." Szafranski v. Dunston, supra, 993 N.E.2d 512. " [T]he balancing approach has been applied in [New Jersey, Pennsylvania, and Tennessee]." Id., citing J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (N.J. 2001); Reber v. Reiss, 2012 PA Super. 86, 42 A.3d 1131 (Pa.Super. 2012); and Davis v. Davis, supra, 842 S.W.2d 588.
In Davis, having concluded that no agreement existed; Davis v. Davis, supra, 842 S.W.2d 598; the court weighed " the relative interests of the parties in using or not using the pre-embryos . . ." Id., 604. The court explained: " Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail." Id.
In applying the case law from sister states to the instant case, we must begin with deciding whether or not a valid contract between the parties exists. There is a contract of sorts. It is in the form of a " check the box" questionnaire rather than a carefully considered and drafted understanding. There is no suggestion of any consideration having been exchanged in return for the defendant's agreement to release the embryos to the plaintiff in the event of a dissolution of the marriage. Further, it is certainly against Connecticut's public policy to force a person to parent a child without his or her agreement.
Agreements made prior to the entry of a final judgment in a dissolution of marriage case that are then offered to the court to now approve as part of the court's orders must be considered by the court under the provisions of General Statutes § 46b-66(a). Clearly the disposition of the frozen embryos is to be decided by the court and both parties have offered proposed orders in that regard. If, at the time of the final hearing the parties are no longer in agreement the court must make its determination based on the evidence presented including the existence of the alleged contract. (See Meeks v. Meeks, III, Superior Court Judicial district of Middlesex at Middletown, Docket No. MMX-FA-06-40052562-S (July 26, 2013, Adelman, J.) (56 Conn.L.Rptr. 579, )).
General Statutes § 46b-66(a) provides: " In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d."
Connecticut courts as well as the courts of most other states have recognized frozen embryos as neither purely property nor a person, but as something different that requires that " it occupied an intermediate category in the law entitled to a special respect that would not be given ordinary tissue." Janicki v. Hospital of St. Raphael, supra, 46 Conn.Supp. 220.
Balancing the intents of the two parties, the court cannot simply order the embryos be turned over to the plaintiff for future use nor should it simply order their destruction. An order that balances both interests and is in conformity with our public policy is most appropriate.
Both parties have worked to advance their education over the years and it is clear that had the family remained intact, they would have made all reasonable efforts to support their minor child in her educational pursuits post-high school.
At the court's direction the GAL provided the court with her affidavit of fees dated September 1, 2016 (#213) and the parties were given an opportunity to file an objection to said fees. No such objection was filed by either party. The GAL provided 78.10 hours of service to this family at rate of $150 per hour. The total bill for her services was $11,715. The initial order of the court appointing the GAL allocated responsibility for the GAL fees with the plaintiff responsible for 25% of the cost and the defendant responsible for 75% without prejudice to the court allocating the final liability differently (#178). As of the date of the GAL's submission, the plaintiff had paid a total of $785 and the defendant had paid $2,625. Based on the court's findings and financial orders in this judgment it would be appropriate to alter the original allocation of the GAL fees.
The parties qualified for GAL services at a reduced rate due to their collective income.
There was one pendente lite motion reserved until the time of trial. The defendant's motion for contempt (#196) filed on June 13, 2016, alleges that the plaintiff has wilfully failed to comply with the orders of the court adopting the April 2, 2015 stipulation of the parties. Under the terms of that agreement and court order, the plaintiff was responsible for the payment of the electric bill for the marital home in the amount of $1,142.04 and for one-half of the minor child's " reasonable and necessary expenses." The defendant claims the plaintiff owes him $1,129.87 under that latter provision. The total claimed by the defendant is $2,271.91.
In support of his claim, the defendant offered two exhibits consisting of receipts with a summary cover sheet; one for 2015 and one for 2016. A careful review of the exhibits (Defendant's exhibits " EE" and " FF") demonstrates that the majority of expenses were for clothing for the child. The 2016 receipts include some for medical needs and school expenses, but not all are persuasive. The receipt for co-pays incurred during the month of March 2016 only includes insurance billing codes and not dollar amounts. Additionally some of the receipts pertain to the plaintiff's dental treatment and not the minor child's.
The plaintiff also had demands for reimbursement for money she had expended for household expenses and child-related expenses. Clearly, the parties' communication grew increasingly worse over time after their April 2, 2015 agreement. That resulted in police involvement and finally a total breakdown of the nesting arrangement. Given the competing claims and the troubled history of the parties during the Spring of 2015 and beyond, the court cannot find that the plaintiff is in contempt of the court orders.
Additional areas of conflict include the ownership and use of cemetery plots purchased by the couple during the marriage. They own a grave plot in a local cemetery. Apparently, just recently and while the trial was pending, the defendant's parents paid to have a gravestone erected on the plot at their expense. The defendant is requesting that he be given the cemetery plot in the division of property. The plaintiff, in her proposed orders dated April 26, 2016 (#188), has requested that they split the grave plot.
The testimony was conflicting as to whether the plot had room for two or more graves.
Another such area is the plaintiff's allegation that the defendant has an ownership interest in real property located at 298 Katona Drive in Fairfield, Connecticut. That property is the long-time residence of the defendant's parents. The defendant testified that until reviewing the trial management compliance in this matter he had no idea that he and his two brothers were the title owners of his parents' home. It would appear that his parents quit claimed the property to their adult sons reserving a life use for themselves as part of their estate planning. This was done well before the commencement of the litigation. The parents executed the deed in April of 2011. The plaintiff made no claim for any value from this property associated with the defendant.
This has been a troubled relationship for many years. The plaintiff is an extremely bright and well organized individual who maintains careful records of everything. She clearly believes that she made more of an effort in this marital relationship than did the defendant. The plaintiff testified that she felt betrayed by the defendant when he did not work with her to have a large family as they may have originally planned. The plaintiff testified that she believes she was more supportive of the defendant's career than he was of hers. Finally, she also believes that she put more financially into the marriage than did her husband.
The defendant testified that the marriage had been in serious trouble for years prior to the filing and that previously he had filed for divorce in 2005, but the parties attempted to save the marriage. It is certainly clear that his profession and his efforts to advance his profession must have occupied a great deal of his time and efforts. That, however, appears to have been the marital arrangement at that time. Did the defendant rely on the plaintiff's excellent organizational skills to run the household and the family? He most likely did. That was their marital arrangement while they were married.
However, once the relationship began to deteriorate, it is not surprising that each party's perception changed and the arrangements changed as well.
The court cannot find that one party was more at fault for the failure of the marriage than was the other.
The court, having considered all the testimony offered and the full exhibits entered into evidence in light of the statutory criteria as explained by our case law, makes the following FINDINGS:
A. The court has jurisdiction in this matter; B. All statutory stays have expired and the court is free to enter a judgment of dissolution of marriage; C. The allegations of the complaint have been proven; D. Neither party is more at fault for the failure of their marriage than is the other; E. The parties have one minor child issue of the marriage, to wit: Genna Lyn Mate born on May 21, 2009; F. Neither the State of Connecticut nor any municipality therein has contributed to the support of either party or the minor child; G. The best interests of the minor child would be served by an order of joint legal and physical custody; H. The Child Support Guidelines indicate that the appropriate child support would be a payment of $172 weekly by the defendant to the plaintiff and a payment of $91 weekly by the plaintiff to the defendant; I. Given the custodial orders that the court will issue below, it would be inappropriate and inequitable to follow the guidelines and the court deviates from the guidelines in this case based on special circumstances, specifically, the shared parenting plan, and coordination of total family support, specifically, the financial orders to be entered as to alimony; J. The parties, had they remained an intact family, would have supported their minor child in her post-secondary school educational efforts; K. The plaintiff is currently working part-time as a waitress and operates a home-based sales company; L. Although her current income is fairly low, her past income has been much more significant and there is no reason why she will not be able to restore her earnings to a more significant amount in a relatively short period of time; M. The defendant is a career firefighter and has several certifications allowing him to act as an instructor in his profession as well as a fire marshal; N. His income levels are lower presently than they have been in past years and the reasons for that reduction are credible to the court; O. The defendant is capable of additional income from his secondary sources of employment in future years, but at an amount that cannot be determined at this time; P. In making the financial orders entered below, the court has considered the effective income of the parties net of taxes and other mandatory deductions as required by our statutes; Q. The plaintiff is the sole owner of her business, Thirty-One Gifts, LLC, the value of which is negligible; R. The defendant is the sole owner of his business, ESPIC, LLC, the value of which is negligible; S. The plaintiff previously withdrew all of the funds from her deferred income assets which totaled approximately $60,000; T. The defendant has a pension through the Town of Guilford which has accumulated solely during the duration of the marriage; U. The defendant also has a 457(k) account as a benefit of his employment with the Town of Guilford, but he has not contributed to that account for several years predating the commencement of this action; V. The fair market value of the marital home located at 284 Moose Hill Road, Monroe, Connecticut is $290,000 and there is a first mortgage encumbrance of approximately $273,000; W. Said real property is currently in violation of the Town of Monroe's Inland Wetland regulation and under considerable potential fines; X. The defendant has taken steps to bring the property back into compliance with said regulations; Y. The defendant is currently in possession of the marital residence; Z. The parties are the owners of several frozen embryos, the product of in vitro fertilization efforts in 2008-2009; AA. The court does not find that the disposition form signed by the parties at the commencement of the in vitro fertilization process is a valid contract that can be enforced by the court; BB. The embryos are not purely property, nor are they persons, but they are deserving of respect and special and careful treatment; CC. It would be inappropriate and against public policy to force the defendant to be the father to any child born from said embryos in the future; DD. The parties are the owners of a cemetery plot in a local but unspecified cemetery; EE. Each party has accumulated considerable debt both before and during the litigation much of which is in the form of loans and/or credit supplied by their respective parents; FF. Both parties have accumulated considerable legal fees In this extensive litigation; and GG. The GAL's fees for services rendered in this matter in the total amount of $11,715 are fair and reasonable given the nature of the litigation and to expertise of the GAL.
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.
In accordance with the findings enumerated above and in consideration of the various statutory criteria the court is required to employ in making its findings and entering its orders, the court hereby ORDERS:
I. The marriage of the parties is dissolved and they are each separate and individual persons.
II. The parties are to share legal and physical custody of the minor child, Genna Lyn.
III. The parties are to follow the following parenting plan:
A. Weekly access plan
1. The plaintiff shall have primary parental access on Mondays and Tuesdays commencing with pick up from school on Monday afternoon and return to school on Wednesday mornings;
2. The defendant shall have primary parental access on Wednesdays and Thursdays commencing with pick up from school on Wednesday afternoon and return to school on Friday morning;
3. The parties shall alternate weekends with the child which shall commence on pick up from school on Friday afternoon and return to school on Monday morning;
4. If there is no school, for whatever reason on an exchange day, the parents shall exchange the child at 9:00 a.m. at the Monroe Public Library or other location mutually agreed upon by the parties.
B. Vacations
1. Each party shall have two weeks exclusive vacation time with the child during the summer vacation:
a. Said time does not necessarily have to be taken in consecutive weeks;
b. Each week shall consist of five weekdays and one weekend either at the beginning or end of the weekday period.
2. The parties shall exchange vacation schedules no later than May 15th of each year:
a. In the event that there is a conflict of schedule that the parties cannot resolve through discussion
(1) The plaintiff's schedule shall prevail in all even years;
(2) The defendant's schedule shall prevail in all odd years;
b. The planned vacations shall take into consideration the planned activities of the minor child that have been previously approved by the parties;
c. No additional vacation time shall be taken by either party without written agreement of the other parent and such agreement shall not be unreasonably withheld.
3. School vacations shall be alternated by the parties with the plaintiff having the first such vacation of the academic year 2016-2017 and the defendant the next and so on;
4. Neither party shall remove the child from school for a planned vacation without the written approval of the other party;
5. The plaintiff shall have the ability to travel to Florida with the minor child to visit her extended family for one of the major holidays (Easter, Thanksgiving or Christmas) so long as such trip does not encompass December 24th and 25th. She may not use the same holiday two years in a row.
C. Holidays
1. Halloween shall follow the normal rotation of the weekly schedule;
2. Thanksgiving shall be with the plaintiff in even years from after school on Wednesday until Thursday 8 p.m. and with the defendant from that time until return to school on Monday morning. The schedule shall be reversed in all odd years;
3. Christmas Eve/Christmas Day shall be with defendant in even years from after school on the day the vacation begins until December 25th at 1 p.m. and with the plaintiff from that time to December 26th at 8 p.m. The vacation schedule shall be in effect from that point forward. The schedule shall be reversed in odd years;
4. Easter Weekend shall be from after school on the Thursday prior to the holiday to return to school on Monday and shall be with the plaintiff in odd years and the defendant in even years;
5. Memorial Day Weekend shall be from after school on Friday until return to school on Tuesday and shall be with the defendant in odd years and the plaintiff in even years;
6. Fourth of July shall be from 9 a.m. on the fourth until 9 a.m. on July 5th and shall be with the plaintiff in all odd years and the defendant in all even years;
7. Labor Day Weekend shall be from 9 a.m. on the Friday before until return to school on Tuesday and shall be with the defendant in all odd years and the plaintiff in all even years;
8. Mother's Day and Father's Day shall always be with the appropriate parent and shall run from the Saturday before at 8 p.m. until return to school on Monday.
D. The vacation schedule shall supercede the weekly schedule and the holiday schedule shall supercede both other schedules.
E. The parties may alter this schedule by written agreement.
IV. General parenting orders.
A. Neither parent shall do anything to harm the minor child's relationship with the other parent and shall make every effort to ensure that the minor child is able to enjoy a loving and positive child/parent experience with the other parent as well as that parent's extended family. Each parent shall do everything within their control to ensure that all of their extended family and friends do likewise;
B. Neither parent shall make demeaning or denigrating comments about the other parent or the other parent's extended family to the minor child or within her hearing and shall do all within their control to ensure that all of their extended family and friends do likewise;
C. Each party shall provide the other party with a current address, telephone number and email address at all times;
D. For educational purposes only, the child's formal residence shall be 584 Moose Hill Road, Monroe, Connecticut;
E. If a vacation plan requires travel overnight outside the State of Connecticut the traveling parent shall provide the other parent with an itinerary for such travel including but not limited to:
1. Means of travel (including flight numbers, name of the travel company and dates and times of travel), address of accommodations on vacation and telephone number;
2. Said itinerary to be provided at least one week in advance of the planned travel;
3. Each parent shall have one daily telephone or computer video contact with the minor child at a time convenient to all parties.
F. Each party shall take no action, either overt or covert, to interfere with the other party's right to receive all information from third parties regarding the minor child's health, education, religious upbringing and general welfare;
G. Each party shall make all reasonable effort to ensure that any notices, reports and or schedules effecting the minor children received by that party shall be shared with the other party;
H. The parent with primary access at the time shall notify the other parent of any serious illness or accident involving the minor child as soon as is practical;
I. All medical and dental appointments shall be made so as to allow both parties to attend if possible;
J. Each party shall have the right to attend all public functions involving the minor children, including but not limited to sporting events, school. productions, graduations and the like, whether such events take place during their scheduled parenting time or not;
K. The parties shall continue the minor child's therapy with Sharon Diaz at a frequency and duration as recommended by said therapist. Both parties shall have open access to Ms. Diaz and shall follow the reasonable recommendations of the therapist for the best interests of the minor child and a copy of this Judgment shall be provided to Ms. Diaz by the GAL;
L. The parties shall enroll the services of a co-parenting counselor to assist them in the development of better co-parenting communication skills and decision making:
1. The selection of the counselor shall be made by the GAL who shall provide the parties with a list of no less than three (3) candidates;
2. If the parties are unable to agree on a counselor, the GAL will select the counselor from said list;
3. The GAL shall be entitled to a fee for said services not to exceed three (3) hours of her time at the rate of $150 per hour;
4. Said counseling must commence no later than December 1, 2016;
5. The parties shall share the cost equally;
6. The parties shall attend sessions at a frequency and for a duration as recommended by said counselor, but the counseling may not extend for more than six (6) months without the agreement of the parties or further order of the court;
7. In the event of an allegation by either party that the other is not complying with this provision, the co-parenting counselor may be subpoenaed to a hearing to testify as to attendance and good faith participation by the parties only; the substance of any work done in the counseling shall be considered to be settlement discussions and the counselor shall not be questioned in that regard;
8. A copy of this Judgment shall be provided to the co-parenting counselor by the GAL.
M. In order to facilitate the implementation of the shared parenting arrangement, no party may relocate (i) more than fifteen (15) miles from their current residence, or (ii) outside of the State of Connecticut without written agreement or further order of the court;
N. The parties shall consult with one another on all significant, non-routine decisions involving the health, education, religion and general welfare of the minor child:
1. Day to day decisions shall be made by the party parenting the child at that time;
2. Neither parent shall make a non-emergency unilateral decision or take non-emergency unilateral action regarding the child;
3. Significant, non-routine decisions shall include but not be limited to the following areas:
a. selection of schools and educational decisions;
b. the residence of the child;
c. daycare providers including after school and summer camp programs;
d. participation in extra curricular activities that require commitments of time and transportation involving the other parent;
e. non-emergency medical, dental, psychological, psychiatric or orthodontic care including the selection of the care providers;
f. participation in religious organizations and activities; and
g. trips away from home without a parent that involve a distance of more than 50 miles, leaving the State of Connecticut or overnight stays.
V. Neither parent shall pay child support based on the court's deviation from the Child Support Guidelines.
VI. The court shall retain jurisdiction regarding post-majority educational support orders for the minor child pursuant to General Statutes § 46b-56c.
VII. The defendant shall continue to provide medical and dental insurance for the minor child as is available to him through employment at reasonable cost so long as the child is a minor:
A. If the defendant no longer has such insurance, the plaintiff shall provide medical and dental insurance for the minor child as is available to her through employment at reasonable cost so long as the child is a minor;
B. If neither parent has such insurance through employment, they shall agree on such insurance coverage that is affordable and share the expense or, if so qualified, shall enroll the child in the Husky Plan or any successor thereto;
C. The provisions of General Statutes § 46b-84(e) shall apply to this order;
D. The parties shall share equally all unreimbursed and/or uncovered medical and dental expenses for the minor child:
1. The phrase " medical and dental expenses" shall be interpreted if broadly by the parties so as to include, rather than exclude, such treatment for the minor child;
2. Requests for reimbursement shall be made timely and shall include sufficient documentation so as to allow the other party to know the provider of said service, the nature and date of the service, the cost and what insurance coverage has been received and applied to the bill;
3. Any request for additional information must be made within seven (7) days of the receipt of the request;
4. The time limits for reimbursement detailed below shall begin once the additional information has been supplied or the parties agree that the request is sufficient;
5. Reimbursement shall be made within thirty (30) days of the receipt of the request if the amount is under One Hundred Dollars ($100) and sixty (60) days if over that sum.
VIII. The defendant shall pay to the plaintiff as periodic alimony the sum of Three Hundred Dollars ($300) per week:
A. Said alimony shall terminate upon the death of either party, the remarriage of the plaintiff or December 31, 2017, whichever event first occurs;
B. Said alimony shall be subject to the provisions of General Statutes § 46b-86(b);
C. Said alimony shall be taxable income to the plaintiff and shall reduce the gross income of the defendant for tax purposes;
D. Each party shall provide the other with copies of any and all W-2 and 1099 forms received by them no later than February 28th of each year commencing with February 28, 2017;
E. Said alimony order may be secured by a contingent wage withholding order.
IX. The parties shall be responsible for their own health and/or dental insurance from this point forward. The defendant shall cooperate with any efforts made by the plaintiff to obtain insurance coverage from his employer under the COBRA provisions of both the state and federal statutes.
X. The plaintiff shall quit claim all of her right, title and interest in the former marital home located at 584 Moose Hill Road, Monroe, Connecticut to the defendant by executing the necessary forms and delivering said forms to the defendant. The cost of recording said documents to effectuate the transfer of title shall be the sole liability of the defendant:
A. The defendant shall refinance the current mortgage obligation to relieve the plaintiff of any obligation under the present mortgage note and deed:
1. Said refinance shall be completed on or before March 31, 2017, except that the defendant may request, and shall receive, one (1) sixty (60) day extension upon a showing of a good faith effort to obtain the refinancing and the need for some additional time to effectuate that procedure;
2. If the defendant is unable to refinance the current mortgage obligation, he shall place the property for sale no later than June 30, 2017:
a. The property shall be listed by a realtor chosen by the defendant which realtor shall be directed to aggressively market the property for as quick a sale as might be reasonable;
b. The plaintiff shall be notified as to the name of the realtor and given a copy of the listing agreement;
c. The defendant shall be entitled to any and all proceeds from said sale.
B. The defendant shall be solely liable for all expenses stemming from the ownership and possession of said property including but not limited to the mortgage, taxes, insurance, utilities, maintenance and repairs and he shall indemnify and hold harmless the plaintiff from any liability thereon;
C. The court shall retain jurisdiction over this provision until the plaintiff is no longer obligated under any mortgage note or deed or the property is sold to a third party.
XI. The plaintiff shall own her Florida timeshare free and clear of any claim by the defendant and shall be solely liable for all expenses stemming from the ownership and possession of said property and she shall indemnify and hold harmless the defendant from any liability thereon.
XII. The defendant shall forthwith transfer to the plaintiff all of his right, title and interest in the cemetery plot by executing whatever forms and documents that might be required by the cemetery. Any cost involved shall be the sole liability of the plaintiff.
XIII. The plaintiff shall own the following property free and clear of any claim by the defendant and shall be solely liable for any costs associated with said ownership and shall indemnify and hold harmless the defendant from any liability thereon:
A. Her People's Bank account ending in 1145;
B. Her TD Bank account ending in 4353;
C. The 2011 Chevrolet Traverse; and
D. Her business known as Thirty-One Gifts, LLC.
XIV. The defendant shall own the following property free and clear of any claim by the plaintiff and shall be solely liable for any costs associated with said ownership and shall indemnify and hold harmless the plaintiff from any liability thereon:
A. His People's Bank account ending in 8187;
B. His United Shoreline FCU account ending in 4920;
C. His Newtown Savings Bank account ending in 8473;
D. His People's Bank account ending in 4911;
E. The 2014 Chevrolet Camero;
F. The 1996 HD motorcycle;
G. The 1999 Chevrolet Malibu;
H. His business known as ESPIC, LLC;
I. His interest in his parent's home located at 298 Katona Drive, Fairfield, Connecticut.
XV. The defendant's Town of Guilford pension shall be divided equally among the parties valued as accurately as possible as of September 1, 2016 adjusted for any gains or losses if any, prior to the actual distribution:
A. The parties shall cooperate with the attorney selected by their counsel in the drafting of the necessary Domestic Relations Order (DRO);
B. The cost of the preparation of the DRO to be shared equally by the parties;
C. The court shall retain jurisdiction over this provision until the DRO is accepted by the Plan Administrator.
XVI. The defendant's 457 account shall be divided with the plaintiff receiving seventy-five (75%) of the account and the defendant receiving twenty-five (25%):
A. The account shall be valued as accurately as possible as of September 1, 2016 adjusted for any gains or losses, if any, prior to the actual distribution;
B. Should a Qualified Domestic Relations Order (QDRO) be required to carry out this order, the parties shall use the same attorney for the drafting of the QDRO as selected for the DRO;
C. The cost of the preparation of the QDRO to be shared equally by the parties;
D. The court shall retain jurisdiction over this provision until the QDRO is accepted by the Plan Administrator or the funds are successfully transferred.
VII. The plaintiff shall be solely liable for all debts and liabilities as listed on her financial affidavit or in her sole name, if not so listed, including but not limited to the following:
A. All credit cards in her name;
B. Any funds owed to her mother for the use of the mother's credit cards;
C. The IRS debt in the approximate balance of $1,800;
D. The taxes on the vehicle she owns under the terms of this Judgment.
XVIII. The defendant shall be solely liable for all debts and liabilities as listed on his financial affidavit or in his sole name if not so listed including but not limited to the following:
A. All credit cards in his name;
B. All loans from his parents or other family members;
C. The real estate taxes on the marital home;
D. The taxes on the vehicles he owns under the terms of this Judgment.
XIX. The future use of the frozen embryos stored at Park Avenue Fertility and Reproductive Medicine of Trumbull, Connecticut shall be determined by the plaintiff subject to the following conditions:
A. She shall be solely liable for any and all cost associated with the maintenance of said embryos and shall hold harmless and indemnify the defendant from any such liability;
B. If and when she intends to attempt to conceive a child from said embryos, she shall give the defendant at least ninety (90) days written notice by in-hand service by a Connecticut State Marshal or other appropriate process server before the implantation of any of said embryos;
C. Upon notice, the defendant shall have the option of terminating his parental rights to any such future child in the appropriate Probate Court with all associated expenses including but not limited to any legal fees incurred by the defendant in said process to be borne solely by the plaintiff;
D. The plaintiff will not object to the defendant's application for termination of parental rights;
E. In the event that any future court of competent jurisdiction shall order the defendant to financially support any future child born as a result of the use of said embryos, the plaintiff shall hold him harmless and indemnity him from any such expense, which expense shall include but not be limited to the payment of a reasonable legal fee, to allow the defendant to enforce these provisions and defend against her claim for child support.
XX. For purposes of income tax reporting for all governmental entities, the parties shall alternate filing as " head of household" and shall claim the minor child as a dependent:
A. The plaintiff shall file in all odd years beginning in tax year 2017 and defendant shall file in all even years beginning in tax year 2016;
B. The parties shall each file the appropriate IRS tax forms to allow the other party to claim the child as a dependent as detailed in this provision.
XXI. The parties shall divide their personal property, not specifically assigned above, to their mutual satisfaction;
A. In the event that they are unable to agree on any items by January 1, 2017, those items shall be sold and the net proceeds of said sale shall be divided equally;
B. Alternatively, if the parties agree, they may engage in binding arbitration to decide the issue with an arbiter of their mutual choice sharing equally the cost of said process:
1. The court notes that this provision is an option only and is not an order of the court, such an order being beyond the jurisdiction of the court, absent an agreement of the parties;
2. Should the parties elect this option, the arbitration must be completed no later than March 1, 2017. If not completed by that date, the provisions requiring the sale of the property must be completed no later than May 1, 2017.
XXII. The defendant's motion for contempt (#196) is denied.
XXIII. Until such time as the defendant's Town of Guilford pension is in pay status, he shall maintain a life insurance policy with a death benefit of $250,000 naming the plaintiff as the irrevocable beneficiary and shall provide the plaintiff with proof of such coverage at least annually, on December 1st of each year, commencing with December 1, 2016.
XXIV. The court approves and awards the GAL a fee of $11,715 and the parties shall pay said fee as follows:
A. The plaintiff shall be liable for forty (40%) of the fees or $4,686 less the payments made to date in the amount of $785, leaving a balance due and owing of $3,901;
B. Said amount must be paid in full on or before October 31, 2018:
1. The plaintiff must make a minimum payment of $100 per month;
2. If any balance remains unpaid as of November 1, 2018, a penalty of ten percent (10%) per annum shall be applied to the full original amount of $3901 and shall accrue as of November 1, 2016;
3. Said penalty shall accrue monthly at the rate of $32.51 ($3,901 x 10%=$390.10 divided by 12 months=$32.51) until the entire original balance plus accrued penalties are paid in full.
C. The defendant shall be liable for sixty percent (60%) of the fees or $7,029 less the payments made to date in the amount of $2,625, leaving a balance due and owing of $4,404;
D. Said amount must be paid in full on or before October 31, 2018:
1. The plaintiff must make a minimum payment of $100 per month;
2. If any balance remains unpaid as of November 1, 2018, a penalty of ten percent (10%) per annum shall be applied to the full original amount of $4,404 and shall accrue as of November 1, 2016;
3. Said penalty shall accrue monthly at the rate of $36.70 ($4,404 x 10% = $440.40 divided by 12 months = $36.70) until the entire original balance plus accrued penalties are paid in full.
E. The GAL shall not be prohibited from taking any and all actions under the law to collect this debt in the event of a default of these provisions including but not limited to filing a motion for contempt, a motion to compel payment and/or the filing of a judgment lien; and
XXV. Each party is to be solely liable for their own legal fees and costs associated with this litigation.
SO ORDERED.