Opinion
FBTFA156047949S
08-22-2016
Sandra Muller v. Hunter Muller
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Gerard I. Adelman, Judge
INTRODUCTION
This dissolution of marriage action was heard by the court over six trial days, commencing on May 24, 2016 and concluding on July 6, 2016. Each party called witnesses, in addition to themselves. The plaintiff called an expert business evaluator, a real estate appraiser, and the Guardian ad litem (GAL). The defendant called a real estate appraiser and the defendant's accountant. The plaintiff offered thirty-three documents as evidence, and the defendant offered nineteen documents as evidence, all of which the court accepted into evidence as full exhibits.
The custody related issues had been resolved by the parties with the assistance of the GAL prior to the start of the trial. The court accepted that agreement (#219) and made it an order of the court, reserving for the trial one limited issue regarding the continuation of a substance abuse monitoring program. That matter will be addressed below. Additionally, the issue of child support was also reserved for trial and was not addressed in the parenting plan. Finally, there were several motions still pending that had been reserved for resolution at the trial. Those motions are: the plaintiff's motion for order (#190); the plaintiff's motion for attorneys fees (#201); the plaintiff's motion for contempt (#202); the plaintiff's motion to compel (#205); and the plaintiff's motion for contempt (#206).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The parties were married on December 14, 2002 in Woodstock, Vermont. Initially, they resided in the defendant's home in Westport, Connecticut, but later built the present marital home in the Fairfield Beach area of Fairfield, Connecticut, which they moved into in early September 2005. The parties have two sons, aged thirteen and ten respectfully. The plaintiff commenced this action in the beginning of 2015, with a return date of January 27, 2015.
The plaintiff is forty-eight years old, is in good health, and has graduated high school. This is her second marriage. According to her undisputed testimony, she was employed in the IT industry when she and the defendant first met. She was the director of client services for a firm located in New York City, and had also worked as an office manager for a short period of time. She previously had a career as a model and an actress, which began in 1983. She continues to receive small residual payments for those services, but had received no such payments within the time period of her financial affidavit filed on May 23, 2016. (#215.) Additionally, she presently does wine consulting for a business she started in 2000, but again, her financial affidavit reported no earned income beyond business expenses. She testified that the consulting work was more of a hobby than a business, and that she never earned in excess of $10,000 dollars in any given year for her efforts in this area. That testimony was not disputed by the defendant, although in his closing statement, he argued that the plaintiff had an unspecified earning capacity. Although the plaintiff claims to have participated in the defendant's present business, she reported that she has had no third-party employment during the years of the marriage.
The defendant is presently fifty-five. Although he described his health as good to excellent with regular attendance at the gym, when testifying on direct examination by the plaintiff, he reported several health issues. He testified that he has been under the care of a psychiatrist since 2013 at the specific request of the plaintiff. That doctor has prescribed medications for the defendant in order to help him stabilize his mood variations and to deal with anxiety problems. He sees this doctor twice monthly. Additionally, the defendant testified that he sees his primary care physician quarterly for what he described as " prevention and maintenance" and to look for future potential health issues. He reports some unspecified problems with his neck and shoulders. Finally, the defendant believes that he suffers from an undiagnosed concussion from a skiing incident in February of 2015. Although he admits that his primary care physician has not made such a diagnosis, he did consult with an ear, nose and throat specialist for problems walking. He testified several times about memory problems which he believes may be a result of his undiagnosed concussion, or, as he acknowledges, simply normal aging. Whatever health issues the defendant might have, he appears to be exceptionally fit. He works, by his own admission, long and hard hours at his business and he plays with the same level of intensity. He is a lifelong sailor, participates in racing at his yacht club, and is an avid skier.
The defendant holds a bachelor's degree. He was self-employed when he and the plaintiff met, but the defendant began to work for the plaintiff's father shortly thereafter. He remained at the father-in-law's business, The Advisory Counsel, Inc., serving as head of sales and business development, and then as president of the company in January 2008. He was terminated from that position later that same year. The defendant returned to his prior self-employment and refashioned that business into his present company, HMG Strategy, LLC. According to the defendant's testimony, and that of the plaintiff as well, he has worked extremely hard to make this business not only a going concern, but a very successful business. It is the defendant's opinion that the business success rests on his efforts, his dynamic personality, and his personal relationships with his vendors and clients. That opinion is disputed by both the plaintiff and her expert business evaluator, as shall be discussed below.
The dynamics of this marital relationship are, to a large degree, undisputed. The defendant worked very long hours and supported the family financially. The plaintiff was responsible for the family life and two children. When asked by the defendant's own counsel to opine on the reasons for the failure of the marriage, the defendant provided several reasons. The defendant replied that the first reason was his unrealistic work effort and working " insane" hours over the last eight years, stressed communication at home as the second, the overarching stress of his business as the third, and the plaintiff's alleged affair as the fourth and final reason. The plaintiff's reasons for the breakdown of the marriage certainly mirrored the defendant's work schedule and travel, but also included his drinking, manic behavior, and lack of involvement with the children. She also alleged that there were episodes of physical abuse.
Of the two parties, the plaintiff appears to be the more credible. " It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses . . . It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action." (Emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010).
The plaintiff's testimony was clear and consistent, while the defendant frequently found himself in the position of having to retract a statement or attempt to explain an inconsistency in his testimony. One example that stands out rather clearly in support of this conclusion by the court is his trial testimony regarding an effort on the part of the plaintiff to reform the defendant's behavior in 2009. When asked about the effort which the plaintiff had referred to as an intervention, the defendant testified that he did not recall the event. After being shown his response to the same question at his deposition--an event that took place only a few days before the trial began--and reviewing the transcript, the defendant then admitted that he recalled the event, and testified that he could also recall the participants. In an effort to repair the inconsistency, the defendant insisted that it was only a discussion and not an intervention.
Nevertheless, the court is not able to find that one party was more at fault for the breakdown of the marital relationship than the other. It is true that the defendant worked long hours at his business, but the plaintiff enjoyed the fruits of those efforts and the marital division of labor appears to have been recognized and at least tolerated by both. There is no substantiation to the defendant's claim that the plaintiff caused the breakdown due to an affair with another man. There were allegations of domestic abuse on the part of the defendant by the plaintiff and the court found that testimony to be credible. While the court does not wish to appear as though it is minimizing such behavior, the behavior in question, however, does not appear to have been the motivating factor to the plaintiff in seeking a dissolution of the marriage. Her emphasis was much more on the defendant's manic like behavior, his drinking and his very egocentric approach to the marriage and his parental obligations.
DISCUSSION
The major disputed issues involve several areas. Among these issues are the value of the marital home, the defendant's use of alcohol while exercising his parenting access, and whether the defendant's business is his stream of income, or if it has a value that should be considered part of the marital estate.
The parties have resolved the custodial issues with a parenting plan, but the issue of the defendant's continued use of Soberlink to monitor his drinking during his parenting time was not resolved by that plan.
The marital home is located at 800 Rowland Road in Fairfield, Connecticut. This home is located in the Fairfield Beach area. While not directly on the beach, the Long Island Sound is a short walk away, and there are some water views from the upper floors of the building. The fair market value of the home is disputed and both parties called real estate appraisers to testify. The plaintiff's expert witness, Ms. Linda Sepso, has been an appraiser in the Fairfield area for thirty years, and has excellent credentials, including being certified as an instructor for new appraisers and having served twice as a member of the Appraisal Commission. Sepso found the fair market value of the property to be $1,275,000 as of May 2, 2016. The defendant's expert, Mr. Stephen Correll, had similar credentials in terms of longevity in the profession, but lacked the involvement with the types of institutions Sepso had. Correll found the fair market value to be $1,550,000 as of June 2, 2016. The two experts used many of the same comparable sales for their report, but one of the major issues they could not agree upon was the quality of the water view and significance of the fact that the house backs up to a tidal marsh. Sepso thought the water view was good, but not great, and testified that one could see the water by looking between other homes, but that the beach was not visible at all. Correll thought the view was better and not as obstructed as was testified to by Sepso. Correll did agree though that the house was not waterfront and it was a limited view. The court did not find the distinction between the two experts on the water view dispute to be all that meaningful. What was more significant to the court was the difference in opinion regarding the marsh land behind the house.
Sepso testified that the marsh was insignificant to her appraisal and that she made no adjustments either up or down due to the fact that the house abutted the marsh. Her comments were that in the summer, you only see grass and it is the Sound that people want to see. While the court certainly agrees that the views of the Sound is the primary reason buyers want homes in a beach area, it cannot agree that bordering the tidal marsh is of no value to a potential buyer.
Sepso did raise an issue of some concern to the court that the defendant's appraiser minimized--the fact that there is only one staircase from the upper floors to the ground level, which means that there is only one way to exit the home in the case of an emergency. The tidal marsh has a beauty all of its own, and it is certainly part of the New England seashore experience, but there is value if for no other reason that one is guaranteed not to have a building on the rear lot.
Overall, the court found the appraisal of Correll to be more persuasive.
The sole remaining parental issue over the use of the Soberlink device by the defendant is a difficult decision. The defendant agreed to not drink while parenting the children and he agreed to voluntarily use the Soberlink device relatively early in this case after a rather unfortunate incident in which the older of the two minor children was quite ill. During that incident, the defendant, who had the children overnight, took no action and returned the children to the plaintiff the next morning with the comment that the boy had been ill and should see a doctor. The child required immediate medical attention at the Yale-New Haven Emergency Department. The defendant had been drinking the day and the evening of the incident and this drinking to excess was an allegation raised by the plaintiff as a contributing factor to the lack of care for the sick child. That incident took place during the summer of 2015 and now the defendant is asking to end the restriction as to drinking and, by extension, the use of the Soberlink device.
The Soberlink device is a cell phone combined with a Breathalyzer. The subject receives a text ordering a sobriety test. The subject blows into the Soberlink and a picture of the test is taken. If the test is positive for alcohol, the monitor distributes that information to the list of prearranged recipients. If the test is not taken, the subject is prompted again. The testing can be done on a prearranged schedule or randomly.
The defendant was an active member of Alcoholics Anonymous (AA) for some fourteen years, attending two to three meetings weekly and abstained from all alcohol use. This began before his marriage to the plaintiff. He testified that at that time, he considered himself an alcoholic. Sometime in 2000, he decided that he no longer wanted to abstain from drinking and ended his association with AA. Since then, he and the plaintiff drank both individually and together. The plaintiff testified that she believed that the defendant drank excessively and from the defendant's testimony it is clear that he is more than what one would describe as a social drinker in that he consumes more than fourteen drinks in the average week or more than four drinks at one sitting.
Social drinkers are those individuals who drink in low-risk patterns. According to the National Institute on Alcohol Abuse and Alcoholism (NIAAA), " low-risk drinking . . . for males, it consists of no more than 14 drinks per week and no more than 4 drinks per day."
His record using the Soberlink has been generally positive and there have been no incidents of confirmed positive tests while parenting. The defendant relies on this history over the last year in asking the court that the restrictions regarding the use of alcohol be lifted. The GAL testified on this limited issue during the trial. It was her recommendation that the restriction be continued for a short period of time, suggesting a month or two. It was the GAL's opinion that as a recovering alcoholic, the defendant should not drink, especially when parenting his two sons. She is concerned that he is asking for that restriction to be lifted, but admits that his record has been good since last summer. The plaintiff wants the restriction to continue and for the Soberlink device to be continued as well.
On the last day of testimony, the plaintiff examined the defendant on an allegation that he consumed alcohol while parenting one of the two boys. The defendant denied that allegation and the plaintiff has filed a contempt motion regarding her allegation (#229) which was scheduled to be heard at the short calendar on July 28, 2016, but did not go forward on that date. The matter was heard by this court in August and the court could not make a finding of a willful lack of compliance of the court's order regarding the use of alcoholic beverages by clear and convincing evidence
The defendant has not shown very good parental judgment in the past. He is an extremely self-centered individual, often at the expense of his children. The court referenced the incident regarding the oldest son being ill and the defendant not getting out of bed to tend to him above. That medical problem was caused by the fact that the boy, who suffers from Type 1 diabetes, was allowed to consume more than one sugar based soda without his blood sugar levels being monitored while in the defendant's care. The defendant blamed the incident at least in part on the plaintiff for not properly instructing him on the boy's medical condition, but the child had been diagnosed as a diabetic in January of 2014, some eighteen months earlier. The defendant had more than ample time to learn how to care for his son. More recently, the defendant elected to give up one-half of his vacation week with his sons and asked the plaintiff to care for them. His rationale was that he was exhausted from working and needed time to himself. The plan had been to go to Vermont to mountain bike, but he reduced the week to three days, then spent the weekend in Nantucket with his girlfriend.
The defendant also blamed the plaintiff because the boy had been placed on an insulin pump which eliminated the need for individual injections. That mechanism had broken so they needed to go back to the injections. He claimed he was not properly advised of the procedures.
Regardless of this history of poor parental judgment on the part of the defendant, the court can find no legitimate rationale to continue the Soberlink device indefinitely. The GAL's recommendation for a few more months is not acceptable as it does not address the underlying issue and simply continues the control for a short period of time. The court does believe, however, that it would not be in the best interests of the children for the defendant to be allowed to drink during his parenting time. Certainly, if it is proven that he is not obeying the court orders, sanctions including the restored use of the Soberlink device can be imposed.
A great deal of time and effort during the trial was spent on discussions about the defendant's business and his role in that business. HMG Strategy, LLC, was evaluated by the plaintiff's expert, Joseph A. DeCusati of Meyers, Harrison & Pia. DeCusati and his firm are highly respected in the area of business evaluations. The court has had several prior opportunities to have DeCusati testify before it. In all such occasions, the court has found his expert testimony to be helpful, clear, and most instructive. In this case, the court also found his testimony to extremely helpful.
In dissolution of marriage actions involving a business owned in whole or part by one of the parties, it is important for the court to distinguish between the value of the business and the income derived from that business. One is needed for the equitable division of marital assets and the other is needed for establishing appropriate levels of support for the other spouse and the children. For the purposes of the equitable division of the marital estate, the court can rely on the value placed on the defendant's business by the evaluator. The defendant offered the court no indication of what the value of the business is. On his financial affidavit (#218) filed at the start of the trial, he simply indicates that he owns 100% of HGM Strategy, LLC, but does not list a value for that business. The plaintiff offers the evaluation report, and, although the defendant did a vigorous cross examination of DeCusati, in the court's opinion, that did little to effectively question accuracy of the valuation. The court finds that the valuation placed on the defendant's business by the expert witness is a credible and reasonable amount and the court adopts that value for the purposes of the equitable distribution of the marital estate. See Bornemann v. Bornemann, 245 Conn. 508, 535-36, 752 A.2d 978 (1998) (" [T]hat when neither party in a dissolution proceeding chooses to introduce detailed information as to the value of a given asset, neither party may later complain that it is not satisfied with the court's valuation of that asset. Both parties in a dissolution proceeding are required to itemize all of their assets in a financial affidavit and to provide the court with the approximate value of each asset . . . If the parties fail to do so, the equitable nature of the proceedings precludes them from later seeking to have the financial orders overturned on the basis that the court had before it too little information as to the value of the assets distributed . . . [I]t was not a misapplication of the law for the trial court to have valued the asset on the basis of the scant evidence provided and to have distributed the asset on the basis of that valuation. The fact that neither party advocated a sophisticated method of valuation nor provided any particularly detailed or precise evidence of value in regard to [the asset] did not preclude the trial court from equitably distributing [that asset]").
Both the plaintiff and the defendant propose that the court enter an alimony order in this case--where they differ is in the amount and the term. The defendant suggests that an appropriate alimony order be $12,000 per month for a period of five years, while the plaintiff proposes a base of $27,000 per month for a period of ten years in the form of an unallocated order covering both alimony and child support. The defendant proposes a separate child support order of $2,000 per month per child. The plaintiff also suggests that she receive an additional payment, which is a percentage of gross annual income over $700,000 with a cap of $1,500,000, in gross earnings for the defendant.
The plaintiff submitted a Child Support Guidelines Worksheet. (#220.) That worksheet reported a combined net weekly income of the parents as determined pursuant to the Guidelines to be well above the $4,000 per week amount. Accordingly, the statistical data on which the Guidelines are based do not apply and the court must use its discretion in entering an appropriate child support order.
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.
Section 46b-215a-2c of the Regulations of Connecticut State Agencies provides in relevant part: " (a)(2) When the parents' combined net weekly income exceeds $4,000, child support awards shall be determined on a case-by-case basis, consistent with statutory criteria, including that which is described in subsection (d) of section 46b-84 of the Connecticut General Statutes. The amount shown at the $4,000 net weekly income level shall be the minimum presumptive support obligation. The maximum presumptive support obligation shall be determined by multiplying the combined net weekly income by the applicable percentage shown at the $4,000 net income level."
In determining an award of alimony, the court is mandated to consider the statutory criteria as set forth in General Statutes § 46b-82(a). As detailed above, the plaintiff has not had meaningful employment throughout the years of the marriage. Understanding that she has an appropriate educational background and is certainly capable of being employed, she nevertheless will require support for a period of time allowing her to reenter the job market in a substantive way. Given the nature of the older son's medical issues, immediate full time employment might not be in the best interests of the two minor children.
Section 46b-82(a) provides: " At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to [General Statutes § ]46b-81. The order may direct that security be given therefore on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to § 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment."
The other issue to be resolved is what level of earnings the defendant has historically enjoyed and what level of alimony would he reasonably be able to afford. In reliance on the defendant's financial affidavit filed for the trial, his gross income is $667,316 from his self employment and another $19,760 from dividend income for a total annual gross income of $680,076. The plaintiff has questioned the reliability of the defendant's accounting and clearly there is no dispute that he has routinely transferred money between his various accounts with Wells Fargo with little or no thought as to distinguishing between business funds and personal funds. Likewise, there is no dispute that this very casual bookkeeping extended to the use of the business credit cards as well. The court will take the defendant at his word and base its financial support orders on an annual gross income of $680,076.
Given the fact that the income of the parties is well beyond the statistical basis for the Child Support Guidelines, the court will determine both child support and alimony together in an effort to reach an appropriate income, net of taxes, as both support and alimony orders must be based on the net income, and not the gross incomes, of the parties. See Keller v. Keller, 120 Conn.App. 138, 144, 142 A.3d 1197 (2016); see also Keller v. Keller, 141 Conn.App. 681, 684, 64 A.3d 776 (2013); Cleary v. Cleary, 103 Conn.App. 798, 801-04, 930 A.2d 811 (2007); Ludgin v. McGowan, 64 Conn.App. 355, 358, 780 A.2d 198 (2001).
At the present time, the plaintiff has little or no income and the undisputed testimony at trial is that she has never earned more than $10,000 during the length of the marriage. Historically, " [a]limony is based upon the continuing duty of a divorced husband to support an abandoned wife and should be sufficient to provide her with the kind of living [that] she might have enjoyed but for the breach of the marriage contract by the [husband]." Wood v. Wood, 165 Conn. 777, 784, 345 A.2d 5 (1974); see also Dan v. Dan, 315 Conn. 1, 11, 105 A.3d 118 (2014) (" [a]limony is an award formulated to compensate for [a] transfer [of earning power from nonworking spouse to working spouse] by sufficiently . . . meeting reasonable needs for support not otherwise met by property division and personal income"); Blake v. Blake, 207 Conn. 217, 232, 541 A.2d 1201 (1988) (" [i]n determining . . . alimony under § 46b-82, a trial court must weigh the . . . standard of living of the parties . . ."). Here, the plaintiff has not worked in any substantive way during the course of the marriage. It would certainly appear that the plaintiff does have the ability to be employed and there is no reason why she cannot work; her testimony certainly suggested to the court a willingness to be employed. A transitional period of support is certainly necessary and, even beyond that, there is no reasonable expectation that the plaintiff's earnings will be on the same level as that of the defendant.
The court's award of alimony and child support is based on the effort to more or less equalize the incomes of the parties in consideration of the tax consequences of the specifics of the order, at least as far as their current income per their respective financial affidavits. The assumptions used by the court are as follows: the plaintiff will file her income returns as head of household and will claim at least one of the two children as a dependent; the defendant will file single and claim one of the two children; and the court used the standard deductions and did not itemize deductions.
It is not the intention to have an absolute equalization, but rather to leave each parent with an income, net of taxes, within a range of no more that 5% of one another.
As for the division of the marital estate, the defendant is seeking a credit in his favor based on the premise that he had some considerable assets going into the marriage and the plaintiff did not. That fact was not disputed by the plaintiff, but the question remains whether or not that should impact the equitable division of the marital property. The statute regarding property in a dissolution of marriage proceeding, General Statutes § 46b-81, is very clear. Section 46b-81 states that the court may " assign to either the husband or wife all or any of the estate of the other." (Internal quotation marks omitted.) Kaczynski v. Kaczynski, 124 Conn.App. 204, 213, 3 A.3d 1034 (2010). There is no distinction drawn for property that was inherited by one of the parties or for property that may have been acquired prior to the marriage in question. The division is designed to be an equitable one. Rubin v. Rubin, 204 Conn. 224, 232, 527 A.2d 1184 (1987); see also Picton v. Picton, 111 Conn.App. 143, 152, 958 A.2d 763, cert. denied, 290 Conn. 905, 962 A.2d 794 (2008) (explaining court is within discretion to take into consideration needs of parties regardless of ownership in determining equitable distribution). The goal is to pay mind to " consideration to the equitable purpose of our statutory distribution scheme, rather than to mechanically applied rules of property law. In order to achieve justice, equity looks to substance, and not to mere form." Bender v. Bender, 258 Conn. 733, 751, 785 A.2d 197 (2009).
Section 46b-81 provides:
(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under General Statutes § 46b-45, the Superior Court may assign to either spouse all or any part of the estate of the other spouse. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either spouse, when in the judgment of the court it is the proper mode to carry the decree into effect. b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of General Statutes § 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties. (c) In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.
Over the course of this fifteen year marriage, the income and assets of the parties have been intermingled. Although the title to the real property has remained in the defendant's sole name, the marital home has been refinanced at least twice, perhaps even three times, according to the defendant. As described above, the defendant's use of income and assets is extremely casual in nature and has been throughout the length of the marriage. Based on that information, the court will consider all the marital assets to be available for equitable distribution.
One asset that was the subject of some considerable testimony by both parties is the stock that the defendant holds in The Advisory Council, Inc. He had been employed by that company which was and perhaps still is--owned by the plaintiff's father. At one point, the defendant was the president of the company, but later was fired. The court heard no testimony as to the value of the interest that the defendant owns, nor did it hear any testimony as to the value of the company as a whole. The plaintiff wants the defendant's ownership interest to be transferred to her to avoid potential difficulty between the defendant and her father, but the defendant testified that he has no idea what the value of the interest is and is therefore not willing to surrender it. The court can certainly not fault that position and without any additional information, is not willing to enter any orders requiring a transfer.
PENDING MOTIONS
I.
#190: Plaintiff's Motion for Order, Pendente Lite, Filed April 26, 2016
This motion alleges that the defendant liquidated a large sum of money by selling stock from one of his investment accounts and depositing that money in the joint account. The plaintiff, seeing the money there, withdrew approximately one-half and placed the money in her own account. She also made a second withdrawal to pay against her legal fees. It was the defendant's claim that he had liquidated the funds to pay 2015 income taxes. The court ordered the money to be returned on the claim that checks had already been written to the various taxing authorities and the defendant was afraid that they would be returned for insufficient funds. If that occurred, the parties would incur additional fees and expenses. The plaintiff complied with the court's orders. The plaintiff now seeks an order that the defendant pay the taxes from available income and to refrain from transferring money without the plaintiff's consent. The court will enter orders regarding the payment of the taxes, but with the final judgment being entered, any temporary orders regarding transfers are moot.
II.
#201: Plaintiff's Motion for Counsel Fees, Pendente Lite, Filed May 9, 2016
The plaintiff is seeking to have the defendant contribute to her counsel fees, pendente lite, claiming that she has little or no funds. The defendant has control of all funds and has paid considerable sums to his legal counsel. Although this motion has merit, it is not reasonable for the court to now enter a pendente lite order when it is considering the final dissolution orders.
III.
#202: Plaintiff's Motion for Contempt for Violation of Automatic Orders, Pendente Lite, Filed May 5, 2016
This motion details the movement of funds by the defendant between personal accounts in joint names, in his sole name and business accounts. The alleged movements are not in dispute, but the defendant claims that such movements were done in the normal course of the family's business. The court agrees. Such transfers are part of the defendant's casual co-mingling of funds and his rather lackadaisical bookkeeping referenced more than once by the court above.
The motion also seeks a contempt finding against the defendant for purchasing excessive clothing during the pendency of the matter, but the court cannot reach that conclusion. However, the purchase of a $15,000 boat is a clear violation of the Automatic Orders.
IV.
#205: Plaintiff's Motion to Compel Defendant to Deposition and for Sanctions, Pendente Lite, Filed May 9, 2016
The motion alleges that after a duly noted deposition, the defendant filed a last minute motion for protective order claiming to have business commitments that would not allow his attendance at the deposition. The dates had been prearrange by counsel. Plaintiff's counsel represents that she offered to be in court first thing on the scheduled date to have the protective order motion heard, but the defendant allegedly " failed and refused to attend court."
The testimony of the defendant during the trial was that he had a business meeting later on that date in New Jersey. He further testified that the meeting was scheduled for 6:00 p.m. and that he had to meet with his staff at 5:00 p.m. His testimony was that he left Connecticut at 10:30 a.m. in order to be sure he would not be late. He estimated that the trip would take two hours barring traffic problems. The parties agree that the defendant offered to be deposed alternatively the Friday before the trial was scheduled to begin, but also that he then noticed the plaintiff's deposition for the same date for a time two hours after the suggested time for the defendant's deposition. The depositions of the parties were held on the alternate date.
The defendant had an obligation to appear for the deposition or to accommodate the plaintiff's request that they seek to be heard by the court that morning. His behavior was inappropriate and caused the plaintiff the extra expense of paying for an expedited transcript of the deposition given the extremely short period of time between the deposition and the start of the trial. His behavior also disadvantaged the plaintiff by denying her the roughly ten days of preparation time between the scheduled date of the deposition and the date on which it finally occurred.
V.
#206: Plaintiff's Amended Motion for Contempt for Violation of the Automatic Orders, Pendente Lite, Filed May 9, 2016
This motion is simply an updated version of #202 to add an additional transfer that took place after the filing of the first motion.
FINDINGS OF FACT
Having carefully reviewed the testimony of the parties and the other witnesses including their demeanor while on the stand, and the items presented to the court as evidence, and having considered the statutory criteria of the appropriate statutes as well as the case law of our state, the court makes the following findings of fact:
A. The court has jurisdiction over this matter;
B All statutory stays have expired;
C The allegations of the complaint have been proven;
D. The marriage has broken down irretrievably and there is no reasonable hope of reconciliation;
E. There are two children issue of the marriage, to wit: Chase Muller born May 2003 and Brice Muller born July 2005;
F. Neither party, nor the children, have been the recipient of any state or municipal assistance during the marriage;
G. Neither party is more at fault for the breakdown of the marital relationship than is the other;
H. The plaintiff is a stay at home mother and has not been substantially employed outside of the home throughout the length of the marriage. She has no proven earning capacity at this time;
I. The defendant is self employed and reports to earn more than $680,000 gross yearly an amount the court will accept as reasonably accurate;
J. The defendant's income is difficult to calculate with complete accuracy given the fact that he is self employed and has controlled all aspects of the family's finances, as well as that of his business with historically very poor accounting practices;
K. An award of alimony in favor of the plaintiff would be appropriate;
L. The presumptive child support based on the Child Support Guidelines would be in the amount of $708 per week and 91% of unreimbursed or uncovered medical and dental expenses;
M. Given the combined income of the parties, the Child Support Guidelines are not reliable and the court finds that it would be inappropriate and inequitable to follow said Guidelines;
N. The marital home has a fair market value of $1,555,000 and a current principle mortgage balance of approximately $865,000 and equity line of credit balance of approximately $198,500, leaving an estimated total equity of approximately $491,500;
O. The Vermont real property has a fair market value of $680,000 and an estimated equity of $83,000;
P. The defendant's business HGM Strategy, LLC, is valued at $1,040,000;
Q. The other assets of the parties, including bank accounts, investment accounts and deferred income accounts, total approximately $375,000;
R. The value of the defendant's interest in The Advisory Council, Inc. is unknown;
S. The three American Express credit card have a number of bonus points attached to them as well as an unknown number of airline points of which no value has been offered to the court by either party;
T. The plaintiff testified about the personal property and furnishings in the marital home indicating that several such items were inherited by the defendant from his family; the defendant did not testify as to anything regarding personal property and did not provide any list of items as part of his proposed orders;
U. The plaintiff reports debts of approximately $114,605;
V. The defendant reports debts of approximately $694,243, some of which may be considered joint debt of the parties;
W. Had the parties remained an intact family, they would have supported their children in their post majority educational efforts;
X. The parenting plan previously adopted by the court (#119) remains to be in the best interests of the children;
Y. The best interests of the children would be served by the defendant abstaining from the consumption of alcohol prior to and during his parenting time;
Z. The court finds that the repeated transfers of funds by the defendant among the several accounts both personal and business was in his normal course of business and personal practices;
AA. The defendant's purchase of a boat for his personal use with his children during the pendency of this action was a willful violation of the Automatic Orders which were clear and unambiguous;
BB. The defendant's failure to appear for his duly noticed deposition in early May 2016 was inappropriate and worthy of sanctions being imposed by the court;
CC. An order directing the defendant to make a contribution to the plaintiff's legal fees is necessary to preserve the other financial orders of the court.
ORDERS
Accordingly, based on the above enumerated factual findings of the court, the court hereby ORDERS.
I. The marriage of the parties is dissolved based on the irretrievable breakdown of the relationship.
II. The parties are granted joint legal custody of the two minor children, with their principle place of residence with the plaintiff.
III. The terms and provisions of the Parenting Plan approved by the court on May 24, 2016 (#219) are incorporated into this Memorandum of Decision and entered as orders of the court.
IV. The defendant shall not consume any alcohol in any form for a minimum of six hours prior to or during any scheduled parenting time with the minor children.
V. The defendant shall pay to the plaintiff as child support the sum of $4,000 per month pursuant to the provisions of General Statutes § 46b-84:
A. The defendant shall provide medical and dental insurance for the benefit of the minor children pursuant to§ 46b-84(f);
B. Said payments are to be paid on the first day of each month, commencing the first month following the filing of this Judgment. If said Judgment is not filed on the first day of the month, the defendant shall pay a pro rata amount for that first month;
C. The parties are to share the unreimbursed and/or uncovered medical and dental expenses for the minor children equally:
1. In interpreting what is a medical and/or dental expense, the parties are to use the most expansive and inclusive approach with the goal of including an expense rather than excluding it;
2. The parties are to provide adequate documentation to each other when requesting reimbursement of such expenses that would include, at a minimum, the bill for services, the insurance coverage, if any, and the amount of reimbursement being requested;
3. Requests for reimbursement must be made no later than ninety days after any and all insurance coverage has been applied;
4. The reimbursement must be made within thirty days of any appropriate request has been made.
D. The provisions of § 46b-84(e) shall apply in this case.
VI. The court shall retain jurisdiction as to post-majority education expenses pursuant to General Statues § 46b-56c.
VII. The parties shall share equally all mutually agreed upon activity expenses for the two minor children so long as there is written documentation as to the agreement:
A. An email or text message shall be sufficient if acknowledged;
B. The parties shall use the same reimbursement protocol as detailed in section V, part C, 1 through 4 above.
VIII. The defendant shall pay to the plaintiff as periodic alimony the sum of $20,000 per month plus 25% of any gross annual income between $700,000 and $1,000,000. Any income over $1,000,000 shall not be considered in any motion for modification of the alimony award:
A. Said alimony shall terminate upon the death of either party, the remarriage of the plaintiff, or August 30, 2026;
B. Said alimony shall be reviewable under the provisions of § 46b-86(b);
C. Said payments shall be paid on or before the fifteenth day of each month commencing with the first month following the filing of this Judgment. If said Judgment is not filed on the first day of the month, the defendant shall pay a pro rata amount for that first month;
D. The defendant shall provide the plaintiff with a summary of his income together with a complete copy of his business books and records on an annual basis, no later than May 1st of each year:
1. Said records shall include, but not be limited to, the general ledgers, profit and loss statements, paid invoices, substantiation of business expenses and deductions, tax returns, W-2s and 1099s both issued and received. The plaintiff may, at her expense, seek an audit of the defendant's income by a certified public accountant (CPA);
2. The defendant must cooperate with all reasonable requests of said CPA and provide whatever raw documents or data requested. The CPA shall sign a confidentiality agreement reasonably drafted to protect the defendant's business interests if so requested by the defendant;
3. In the event that the plaintiff's audit shows a misrepresentation of income or an under reporting of income by the defendant, the defendant shall reimburse the plaintiff for the reasonable cost of said audit.
E. Any payment due to the plaintiff for income over the $700,000 level shall be paid in no more than two payments not necessarily equal in amount:
1. The first such payment shall be made no more than thirty days after the determination of the supplemental amount;
2. The second payment, if any, shall be made no more than one hundred twenty days after the determination of the supplemental amount;
3. Interest shall accrue on the unpaid amount commencing on the 121st day at the rate of 10% per annum compounded on the remaining balance due and accumulated interest, if any.
F. The plaintiff shall provide the defendant with her annual 1040 tax return--first two pages only--within ten days of it being filed.
IX. The plaintiff shall be responsible for her own medical and dental insurance coverage. The defendant shall cooperate with the plaintiff's efforts to continue her current coverage under COBRA provisions.
X. The defendant shall designate and maintain the children as equal beneficiaries of a life insurance policy on his life with a death benefit of $500,000 for so long as he has a financial support obligation to either child including child support and post majority educational orders:
A. The defendant shall obtain said policy if not already in place no later than ninety days from the filing of this Judgment;
B. The defendant shall provide proof of coverage and the beneficiaries to the plaintiff when the policy is in place and annually on the anniversary of the policy;
C. This provision shall be modifiable.
XI. The defendant shall designate and maintain the plaintiff as the irrevocable beneficiary of a life insurance policy on his life with a death benefit of $500,000 for so long as he has a financial support obligation to the plaintiff:
A. The defendant shall obtain said policy if not already in place no later than ninety days from the filing of this Judgment;
B. The defendant shall provide proof of coverage and the beneficiaries to the plaintiff when the policy is in place and annually on the anniversary of the policy;
C. This provision shall be modifiable.
XII. The defendant shall quitclaim all of his right, title and interest in the real property located at 800 Rowland Road, Fairfield, Connecticut to the plaintiff within thirty days of the filing of this Judgment:
A. This shall be done by the execution and delivery of a quitclaim deed by the defendant to the plaintiff along with all necessary and required forms and documentation to allow said deed to be recorded on the Fairfield Land Records;
B. The cost of recording said deed shall be the sole liability of the plaintiff;
C. The plaintiff shall hold harmless and indemnify the defendant from all liability stemming from the ownership and possession of said property after the defendant has paid current all such costs incurred or accrued as of the date of Judgment;
D. The plaintiff shall remove the defendant's name from the mortgage encumbrances on or before August 30, 2020:
1. In the event the plaintiff is unable to remove the defendant's name as directed above, the property must be listed for immediate sale;
2. The plaintiff shall be entitled to all proceeds of said sale free and clear of any claim by the defendant;
3. The court shall retain jurisdiction over the real estate until the defendant's name is cleared or the property is sold.
XIII. The defendant shall own the real property located at 85B Lower Sun Dog Trail, Killington, Vermont free and clear of any claim by the plaintiff, and he shall indemnify and hold her harmless from any liability arising out of the ownership and/or possession of said property.
XIV. The defendant shall own the business known as HGM Strategy, LLC, free and clear of any claim by the plaintiff, and he shall indemnify and hold her harmless from any liability arising out of the ownership of said business.
XV. The defendant shall retain, free and clear of any claim by the plaintiff, his interest in The Advisory Council, Inc.
XVI. The parties shall share equally all of the Wells Fargo bank accounts listed on the defendant's financial affidavit including, but not limited to, what the defendant refers to as the business account and the investment account as of the date of this Judgment.
XVII. The defendant shall retain free and clear of any claim by the plaintiff his Scottrade account.
XVIII. The parties shall share equally the defendant's Scottrade Roth ERA and his SEP IRA valued as of July 6, 2016 adjusted for gains and/or losses at the time of the actual division:
A. The parties shall cooperate in arranging the division including, but not limited to, the plaintiff providing the defendant with the necessary account information to achieve the division transfer;
B. In the event that a Qualified Domestic Relations Order (QDRO) may be required, the parties shall share equally in the cost of its preparation and delivery;
C. The court shall retain jurisdiction over this transfer until it is completed.
XIX. The plaintiff shall retain, free and clear of any claim from the defendant, her Screen Actors Guild pension, her interest in CBATL, LLC, and her wine consulting business.
XX. The defendant shall own, free and clear of any claim by the plaintiff, the SeaRay 22-foot boat and shall hold her harmless and indemnify her from any and all liability which might arise from the ownership and/or operation of said vessel.
XXI. The plaintiff shall be solely liable for her legal fees and her debt to Convicer & Percy and shall hold harmless and indemnify the defendant from any liability therefrom.
XXII. The defendant shall be solely liable his legal fees, the AmEx Platinum, the AmEx Executive and the AmEx Gold credit cards, the tax debts for 2012 and 2013, the fees owed to Meyers, Harrison & Pia, the Wells Fargo line of credit and his business debts as listed on his financial affidavit, and shall hold harmless and indemnify the plaintiff from any liability therefrom.
XXIII. The defendant shall make a payment of $40,000 to the plaintiff no later than September 30, 2016 as part of the property division.
XXIV. The parties shall file separate tax returns for 2015.
XXV. The defendant shall maintain membership at the Pequot Yacht Club at his sole expense, but shall reasonably assist the plaintiff if she wishes to apply for her own membership.
XXVI. The plaintiff shall keep for her exclusive use any and all points on the AmEx Gold credit card account #13006 and the defendant shall cooperate in executing any documents necessary to carry out this order.
XXVII. The defendant shall keep for his exclusive use any and all points on the AmEx Platinum credit card account #39004 and the AmEx Executive Business credit card account #92009 as well as any airline points that he may currently have.
XXVIII. The plaintiff shall retain, free and clear of any claim by the defendant, all the household furnishings presently located in the marital home with the exception of the following items:
A. The defendant's grandmother's furniture including an antique writing desk, wooden chair, small side table and boxes of Danish china stored in the attic;
B. The custom round marble table and two chairs;
C. The photograph of Westport sunrise and the large painting of Westport trees;
D. The defendant's papers and documents stored in boxes;
E. All of the defendant's clothing and personal items; and
F. Boxes of the defendant's old photographs and albums.
XXIX. Plaintiff's motion for counsel fees, pendente lite, (#201) is denied.
XXX. Plaintiff's motion for contempt, pendente lite, (#202) is granted:
A. The plaintiff is awarded $7,500 to be included in the property division representing one-half of the value of the boat purchased in violation of the Automatic Orders;
B. The plaintiff is awarded legal fees of $1,500 to be included in the award of legal fees ordered below.
XXXI. Plaintiff's motion to compel defendant to deposition and for sanctions, pendente lite, (#205) is granted:
A. Defendant is to reimburse plaintiff for the cost of the expedited transcript caused by the delayed deposition;
B. Plaintiff is to send defendant's counsel the bill for the transcript and defendant is to reimburse the cost within ten business days after the bill was sent.
XXXII. Plaintiff's amended motion for contempt, pendente lite is denied as it is essentially duplicative of motion #202; and
XXXIII. The defendant shall contribute $20,000 to the plaintiff's legal fees with the payment to be made on or before November 30, 2016.