Opinion
No. FA-09-4044103
October 22, 2010
MEMORANDUM OF DECISION
I BACKGROUND AND FACTS
This dissolution of marriage case was filed by the plaintiff, Toni Olson, on May 11, 2009. The parties were married in New Britain on October 17, 1992, and there is one child who is issue of the marriage, Colby Olson, whose date of birth is November 21, 1993. Both the plaintiff and defendant, David Olson, were represented by counsel at a trial on disputed property and financial issues, heard by the court on September 30, 2010.
The plaintiff is 57 years old and in good health. She has attended college without completing a degree and, in addition, has completed professional training as an interior designer. Although she has been unemployed since 2009, the plaintiff has been gainfully employed in a variety fields and is capable of earning approximately $14 per hour. However, due to the short-term nature of these employment positions, her annual gross income over the past four years has averaged between $18,000 and $19,000; never exceeding $22,332 during that period. Her current weekly income is $348, received for unemployment compensation. Annualized, this equals $18,096.
The defendant is 51 years old and has completed an associate's degree. He has been the owner of several pizza businesses, which provided the family with income for many years, but which have not proven to be successful and are now closed. He currently works as a licensed realtor and mortgage broker, as well as a coach for his local high school football team in Avon. From these activities, he claims gross weekly income of $230 on his financial affidavit.
The disputes between the parties during this dissolution trial may be generally divided into three categories. First, whether the cause of the dissolution of the marriage was the defendant's relationship with Ms. Josephine Jenkins, who is the defendant's former business associate and partner; second, the defendant's income; and third, whether the family abode is sustainable until the parties' 16-year-old minor child graduates from high school.
A. The Cause of the Dissolution
Beginning with the question of whether adultery is the cause of the marital breakdown, the court concludes from the evidence presented at trial that sexual relations between the defendant and Ms. Jenkins did not occur until several months after the plaintiff filed this action for the dissolution of her marriage. Therefore, the court finds that "adultery" as defined by our dissolution statutes did not occur until after the breakdown of the marriage. Although adultery was not pleaded as the grounds for dissolution in this case, the causes for the breakdown of the marriage are properly considered by courts in the context of an allegation and finding of irretrievable breakdown and may be considered in the courts' equitable division of marital assets. Therefore, in determining the causes of the breakdown of a marriage, the court is not limited to proof by a preponderance of evidence of the statutory causes of action for dissolution, enumerated in General Statutes § 46b-40, such as proof of sexual intercourse.
General Statutes § 46b-40 provides: "(a) A marriage is dissolved only by (1) the death of one of the parties or (2) a decree of annulment or dissolution of the marriage by a court of competent jurisdiction. (b) An annulment shall be granted if the marriage is void or voidable under the laws of this state or of the state in which the marriage was performed. (c) A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes had occurred: (1) The marriage has broken down irretrievably; (2) the parties have lived apart by reason of incompatibility for a continuous period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled; (3) adultery; (4) fraudulent contract; (5) wilful desertion for one year with total neglect of duty; (6) seven years' absence, during all of which period the absent party has not been heard from; (7) habitual intemperance; (8) intolerable cruelty; (9) sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for a period in excess of one year; (10) legal confinement in a hospital or hospitals or other similar institution or institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint. (d) In an action for dissolution of a marriage or a legal separation on the ground of habitual intemperance, it shall be sufficient if the cause of action is proved to have existed until the time of the separation of the parties. (e) In an action for dissolution of a marriage or a legal separation on the ground of wilful desertion for one year, with total neglect of duty, the furnishing of financial support shall not disprove total neglect of duty, in the absence of other evidence. (f) For purposes of this section, `adultery' means voluntary sexual intercourse between a married person and a person other than such person's spouse." (Emphasis added.)
"Adultery as a ground for dissolution under General Statutes § 46b-40 requires proof that the other spouse has engaged in extramarital sexual relations. Brodsky v. Brodsky, 153 Conn. 299, 300, 216 A.2d 180 (1966). Although, because of their clandestine nature, adulterous acts are usually proved by circumstantial evidence; Zeiner v. Zeiner, 120 Conn. 161, 165, 179 A. 644 (1935); the circumstances must be such as to lead the guarded discretion of a reasonable and just person to the conclusion of guilt. Brodsky v. Brodsky, supra, 301; Zeiner v. Zeiner, supra; Neff v. Neff, 96 Conn. 273, 275, 114 A. 126 (1921). The adulterous relationship must be established by a fair preponderance of the evidence. Brodsky v. Brodsky, supra, 301, 216 A.2d 180. "[I]n weighing the evidence of adultery, the court should exercise great care to see that it is not imposed upon through the intense interest of the parties to color the facts; it should not see evil where the circumstances may reasonably lend themselves to an innocent interpretation, nor, on the other hand, should it refuse to reach that conclusion which the sound and unprejudiced judgment should lead to." Neff v. Neff supra, 276, 114 A. 126. Adultery will not be inferred from circumstantial evidence unless there is both an opportunity and an adulterous disposition. Eberhard v. Eberhard, 4 N.J. 535, 73 A.2d 554 (1950); 24 Am.Jur.2d, Divorce and Separation § 393; Clark, Domestic Relations § 12.3, p. 330. Moreover, the existence of both the opportunity and the inclination without more does not necessarily compel a conclusion that adultery has occurred. See Antonata v. Antonata, 85 Conn. 390, 393, 82 A. 967 (1912)." Turgeon v. Turgeon, 190 Conn. 269, 278-79, 460 A.2d 1260 (1983).
"[The Supreme Court] has reiterated time and again that awards of financial settlements ancillary to a marital dissolution rest in the sound discretion of the trial court . . . That discretion must of course be exercised within the bounds created by the applicable statutes. In interpreting and applying the statutes, however, we must be guided by their context, especially by their relationship to the statute which permits the dissolution of a marriage `upon a finding that . . . (a) marriage has broken down irretrievably.' General Statutes s 46-32(c) (Rev. to 1977) (now s 46b-40(c)(1)). The latter statute clearly establishes a state policy recognizing that `a marital relationship may terminate in fact without regard to the fault of either marital partner.' Joy v. Joy, 178 Conn. 254, 256, 423 A.2d 895, 896 (1979). No-fault divorce does not mean that the causes of a marital breakup are always irrelevant, but it does mean that determining cause is not crucial to the judicial administration of matrimonial matters.
"The trial court's finding of fact recites in detail the history of the personal and financial relationship between the plaintiff and the defendant. This factual base amply supports the court's conclusions of law that the court `considered' the statutory requirements of §§ 46-52 and 46-51. The plaintiff was afforded the opportunity to offer relevant evidence to assist the court in its evaluation of the statutory `considerations.' The trial court was not obligated to make special conclusory findings about each of these `considerations.' Fucci v. Fucci, supra, 179 Conn. 174, 425 A.2d 592. In the text of the statutes, the criterion relating to `the causes for the . . . dissolution of the marriage' is only one item in an extensive list of criteria that the trial court is directed to take into account. While it would be error for the trial court to refuse to hear witnesses who might attest to the causes of the marital breakdown, the court is entitled to weigh this evidence in conjunction with the other statutory criteria, without having to make an adjudication whether, as in this case, the defendant's conduct amounted to intolerable cruelty." Posada v. Posada, 179 Conn. 568, 572-73, 427 A.2d 406 (1980).
Evidence was presented at trial of a very personal and flirtatious relationship between the defendant and Ms. Jenkins during the late winter and spring of 2009, including Facebook "gifts" such as "Love Birds." Soon thereafter in March of 2009, the defendant and Ms Jenkins appear to have concluded their personal Facebook communications, with the defendant commenting in his Facebook account that there should be "[n]o more Facebook . . . to (sic) public for me." Ms. Jenkins responded: "LOL o.k. under the radar . . . flying low . . ." The court concludes from these communications that, as a married man living at home with a child, the defendant's personal relationship with Ms. Jenkins could not withstand public scrutiny. The defendant's participation in this behavior with Ms. Jenkins led the plaintiff to reasonably conclude that the marriage was over, resulting in the filing of this action on May 11, 2009. Soon thereafter in August 2009, the defendant and Ms. Jenkins began their admitted sexual relationship and have shared a household, together with expenses, since early in 2010.
The defendant alternatively argues and the court further finds that the plaintiff has repeatedly threatened to file for divorce and, in fact, had done so approximately ten years ago. Generally, the reasons justifying these threats of divorce in recent years have involved the defendant's late-night business events, which the court finds to have included Ms. Jenkins on many occasions over the course of many years. Therefore, the court concludes as a matter of fact that the defendant's personal and romantic relationship with Ms. Jenkins was cause of the marital breakdown.
B. The Defendant's Income
The defendant's highest income year was in 2006, during which he earned gross annual income of approximately $80,000. Evidence of the defendant's current income, however, cannot be gleaned from his tax filings, as he has failed to file tax returns for approximately five years. Similarly, his financial affidavit does not accurately reflect his annual income which, instead, reflects his $230 weekly average for the thirteen weeks prior to the trial, as he claims he has not profited from his commission-based earnings beyond this meager amount. Instead, evidence of his income has been deduced from payments he has made to provide for his family, as well as payments he has made to support his new household with Ms. Jenkins.
Since 2006, the defendant claims that his income from his work as a realtor and mortgage broker has fallen precipitously, and that it would be speculative to establish an income capacity for him that is higher than expenses proven through the evidence admitted at trial. The court agrees. Based upon the evidence presented at trial, the court finds as a matter of fact that the defendant earns net income of approximately $45,000 on an annual basis.
The court uses the term "net income" without crediting the defendant with mandatory deductions. In light of the fact that the defendant has failed to file his taxes for five years and that he testified he is unsure of his tax liability, the court will nonetheless use the figure of $45,000.
II FURTHER FINDINGS AND ORDERS
After reviewing the evidence and evaluating the testimony of the parties, the court makes the following findings, in addition to the findings of fact made by the court, infra. The court has jurisdiction in this case and the marriage has broken down irretrievably with no reasonable expectation of reconciliation. Neither the parties nor their child have received state or municipal assistance during the course of the marriage. Based upon these findings, the marriage of the parties is ordered dissolved, effective this date of judgment, and the court issues the following orders concerning custody, support and property:
A. Custody
The parties shall have joint legal custody of their minor child, Colby, with primary residence with the plaintiff mother. The defendant's parenting time and access to the minor child shall be reasonable, flexible and liberal, commensurate with the child's schedule. Both parents shall continue to support the child in therapy, monitor the child for behavioral problems and shall communicate with each other on all such issues.
B. Child Support
The defendant shall pay to the plaintiff $161.00 per week for the support of the minor child, which is in accordance with the child support guidelines and based upon the current incomes of both parties as determined by the court. Unreimbursed medical, dental, ophthalmological, psychological, orthodontic, etc., shall also be paid pursuant to the guidelines: 61% by the plaintiff and 39% by the defendant.
The parties shall share equally in the cost of all agreed upon extra-curricular activities of the minor child, including but not limited to the costs of auto insurance, the costs of obtaining his license, and all sports and leisure activities.
C. Post-Secondary Education
The court will retain jurisdiction to enter an educational support order pursuant to C.G.S. § 46b-56c.
D. Health Insurance
Employment based health insurance coverage is not currently available to the parties at a reasonable cost. Therefore, the plaintiff shall maintain coverage for the minor child through the State of Connecticut Husky Plan. If health insurance becomes available to either party through their employers at a reasonable cost, it shall be immediately provided for the minor child and the parties shall share equally in all premiums for so long as long as it is available. In addition, General Statutes § 46b-84(e) is incorporated by reference into the judgment.
The parties shall be responsible for maintaining their own personal health insurance policies.
E. Alimony
The statutory authorization for the award of alimony in dissolution cases is provided in General Statutes § 46b-82, and "the purpose of both periodic and lump sum alimony is to provide continuing support." Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005). Based upon the facts of this case, and having considered all the statutory factors pursuant to General Statutes § 46b-82, the defendant shall pay to the plaintiff alimony in the amount of $159 per week for a period of eight (8) years from the date of the dissolution. Together with the current child support order of $161, the plaintiff will receive a weekly total of $320 in allocated support. The alimony award is non-modifiable as to duration, but shall terminate upon the death of the defendant or plaintiff or upon the remarriage of the plaintiff. The award is modifiable in the event of a substantial change in circumstances by either party and in the event of the plaintiff's cohabitation as defined by statute.
General Statutes § 46b-82 provides: "(a) 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 Section 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 hear the witnesses, if any, of each party, except as provided in subsection (a) of Section 46b-51, 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, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to Section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment."
In choosing the support figure of $320 per week, the court notes that the division of current family income favors the plaintiff, 55% to 45%.
F. Real Property
The primary issue disputed between the parties involves the disposition of the marital abode located at 16 Springbrook Lane, Simsbury, Connecticut. "The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well . . . General Statutes § 46b-81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property." (Citations omitted; internal quotation marks omitted.) Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004); see Clark v. Clark, 115 Conn.App. 500, 505, 974 A.2d 33 (2009); also see General Statutes § 46b-81.
The provisions of General Statutes Section 46b-81 are as follows: "(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under Section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. 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 the husband or the wife, 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 Section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall affect 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 hearing the witnesses, if any, of each party, except as provided in subsection (a) of Section 46b-51, 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, vocational skills, 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."
The defendant estimates the fair market value of the marital residence to be $330,000, with a first mortgage of $114,000 and a second mortgage of $23,993. The plaintiff estimates the value of the marital abode to be $320,000, with a first mortgage of $110,000 and a second mortgage of $25,000. Based upon these estimates, there is a substantial amount of equity in the marital home, ranging from $185,000 to $192,007.
In her proposed orders, the plaintiff seeks exclusive ownership of the home, including the accumulated equity of nearly $200,000. Under this proposal, exclusive ownership of the home would have been financially supported by her proposed child support order of $195.00 per week and alimony in the amount of $358.65 per week for life, totaling $553.65 per week. Based upon the imposition of these proposed orders and the plaintiff's weekly income of $348, the plaintiff's monthly income of approximately $3,900 may have been sufficient to sustain her continued ownership of the marital home, with estimated monthly expenses of approximately $2,000. However, the court's order of alimony and support totals only $320 per week. This, along with her weekly income of $348, provides her monthly income of only $2,895, which would require approximately 70% of her monthly income to be devoted to the monthly cost of maintaining the home.
The court notes that the imposition of these proposed orders would have resulted in an order of support and alimony totaling 64% of the defendant's current income. Based upon the defendant's current income, he would be left with less than the minimum wage for his work.
Unfortunately, a downward modification of the monthly mortgage expense of $1,500 to $880 was recently lost due to a missed filing deadline in a pending action for foreclosure. Under such a modified mortgage, the plaintiff may have had sufficient resources to maintain the marital home to the plaintiff, or a delayed sale of the asset until the minor child graduates from high school, anticipated in the spring of 2012. Although the defendant was originally willing to agree to a delayed sale of the home, in order to accommodate their minor child's graduation from high school, he claims he can no longer afford to make payments sufficient to meet the current requirements of their unmodified mortgage. The court agrees and further notes that it would be speculative to conclude that a similarly modified mortgage amount would be available to the parties.
In considering the statutory criteria delineated in General Statutes § 46b-81 for the disposition of this property, "no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case." Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989) (quoting Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980)). In addition, "[t]here are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution)." Czarzasty v. Czarzasty, 101 Conn.App. 583, 588-89, 922 A.2d 272, cert denied, 284 Conn. 902, 931 A.2d 262 (2007).
Based upon the facts and circumstances found by the court in this case, the home is ordered to be listed immediately for sale, with the listing price and realtor to be agreed upon by the parties. Until the house is sold, the plaintiff shall pay the mortgage, taxes and insurance against the real property and shall indemnify and hold the defendant harmless. The plaintiff shall hereafter be responsible for all of the remaining expenses at the martial home, including but not limited to the electricity, heat, cable, telephone, car insurance, pet care and any other expenses relating to the operation and maintenance of the marital home. In the event there are any capital improvements required for the home in excess of $200, the parties shall consult one another and agree before expending the sums for such improvements and shall share the costs equally.
Upon the sale of the home for a price agreed upon by both parties, the net proceeds shall be equitably divided in favor of the plaintiff with 65% of such proceeds distributed to her. In determining this distribution, the court has particularly considered the plaintiff's age, who is six years older than the defendant, the causes of the marital breakdown, as well as the history of the employment of the parties, which the court finds, in addition to the relative ages of the parties, provides the defendant a greater opportunity to accumulate assets. See General Statutes § 46b-81 at n. 7.
For purposes of determining net proceeds, the first and second mortgages shall be deducted from the sales price, as well as reasonable realtor's and attorneys fees in connection with the sale, preparation of closing documents and attendance at closing, filing fees, and other customary expenses of closing title to real property. Prepaid items such as real estate taxes and other escrow payments or adjustments made or received at closing or anytime thereafter regarding insurance, taxes, utilities and the like shall be reimbursed according to the same percentage. In the event of any state or federal income tax lien recorded or levied against the property for the failure of the defendant to pay income taxes, all such accumulated taxes, interest and penalties shall be deducted from the defendant's equitable portion of the net proceeds.
The plaintiff claims the defendant has an interest in property known as 21 West Main Street, Avon, Connecticut. She therefore seeks one-half of any interest or monies the defendant receives from the sale, refinance, or transfer of this property. However, the plaintiff has provided insufficient evidence at trial to show that the defendant has any interest or title in this property.
The court retains jurisdiction to resolve any issues that may occur as a result of the real estate transactions involving the marital property located at 16 Springbrook Lane in Simsbury.
G. Other Property
1. Personal property
The parties have divided their personal property to their mutual satisfaction.
2. Automobiles
The plaintiff shall retain her 2008 Ford Focus.
3. Bank Accounts
Both parties shall retain their individual checking and savings accounts.
4. Retirement Assets
The parties shall retain their own retirement plans and accounts.
H. Liabilities
The parties shall be responsible for their own personal debts as listed on their financial affidavits and shall hold each other harmless therefrom.
I. Taxes
The parties shall file their own income taxes separately. The plaintiff shall claim the minor child as a dependent on her income taxes in alternating years beginning in 2010 and the defendant shall claim him in alternating years beginning in 2011, so long as he is eligible for a dependent exemption. For tax purposes, the defendant shall be entitled to the deduction for all payments made to or for the benefit of the marital home for 2010 through the date of the dissolution. Thereafter, the plaintiff shall be entitled to all deductible expenses paid after the dissolution.
J. Life Insurance
The defendant shall nominate the plaintiff and the minor child as irrevocable beneficiaries on a minimum $100,000 life insurance policy until such time as the minor child attains the age of twenty-three years if it is available to him at a reasonable cost. The plaintiff shall nominate the minor child as an irrevocable beneficiary on a minimum $50,000 life insurance policy until such time as the minor child attains the age of twenty-three years if it is available to her at a reasonable cost.
K. Counsel Fees.
The parties shall be responsible for their respective counsel fees.
SO ORDERED.