Opinion
FA114056126S.
11-05-2012
UNPUBLISHED OPINION
OLEAR, J.
This action seeks the dissolution of the parties' marriage. The action was commenced by complaint dated April 11, 2011 and returnable to the court on May 3, 2011. The plaintiff's prayer for relief included a request for a division of property as defined in the Pre-Nuptial Agreement. On July 19, 2011, the defendant filed an answer and cross complaint; the defendant did not seek to avoid enforcement of the prenuptial agreement in the cross complaint. On October 9, 2012, the defendant sought leave to amend his cross complaint to add a prayer for relief seeking to avoid the prenuptial agreement on the grounds that enforcement thereof would work an injustice. On or about October 9, 2012, the plaintiff filed a motion in limine seeking to preclude evidence regarding the invalidation of the prenuptial agreement and/or for a continuance.
The parties appeared at trial on October 11 and 12, 2012. On the first day of trial, the court considered the defendant's request for leave to amend and the plaintiff's motion in limine/continuance. After considering the arguments of counsel, including the concession by counsel for the plaintiff that the plaintiff was prepared to go forward on that day on an amended complaint, the court granted the motion to amend and denied the motion in limine.
The court heard testimony from the parties and one additional witness, and received into evidence nine full exhibits. The court considered all of the credible, relevant evidence presented, applicable common and statutory law, including without limitation, General Statutes §§ 46b-81 and 46b-82. The court has also reviewed and considered the proposed orders submitted by both parties. The findings of fact made by the court have been made by a fair preponderance of the evidence.
There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h).
FINDINGS OF FACT
A. Relevant Facts
1. Initial Findings. The parties were married on March 19, 1991 in Union, Connecticut.
No children were born to the parties during the marriage. The plaintiff has three children from a prior marriage.
2. The Parties' Health, Education and Earnings and Other Relevant Facts. The plaintiff is approximately 67 years old. She suffers from post traumatic stress disorder, high blood pressure, Type 2 diabetes and glaucoma.
The parties met in the summer of 1986. They were both working in the social services field. The plaintiff was a marriage and family therapist. She is currently retired and her social security income is approximately $230 a week gross and $203 a week net.
In addition to her retirement income, the plaintiff receives income from a revocable trust and from irrevocable trusts. At the time of the death of her father, she inherited five irrevocable trusts in which she is an income beneficiary and of which the corpus will be distributed to the next generation— that is, to her children. The credible evidence is that the plaintiff is now a trustee of the trusts, but is not empowered in that role to invade the trust corpus. The values ascribed to the trusts in which she is a beneficiary are listed on her financial affidavit as: (i) $1,602,831 for the 1997 revocable trust for her benefit; and (ii) $4,124,761 for five irrevocable trusts inherited from her father in 1997. She currently receives approximately $3,444 a week gross and $2,569 a week net in incomes generated by the trusts.
At the time of the death of her father in 1997, the plaintiff also inherited assets valued at approximately $1,600,000.
She owns a home and a lot adjacent thereto at 53 Penny Lane in Manchester, Connecticut. The lot is valued at approximately $110,875 and the home at $587,100. There is no mortgage encumbering either parcel of real estate.
The plaintiff has two bank accounts at Webster Bank with a balance of approximately $80,000 as of the date of the trial. She also has a Schwab IRA account having a value of $102,212.
According to her financial affidavit, she owns a 2008 Pontiac Torrent worth $12,950 and a 2006 Audi Quattro worth $14,540.
The defendant is 61 years old. Prior to the marriage he earned a BFA from the University of Connecticut.
As indicated above, the defendant worked in social services prior to the marriage; he was working as Windham Region's community counsel as a director of employment. He last worked full-time in 1989. He testified he was unable to work full-time due to anxiety and emotional issues. After moving in with the plaintiff in 1990 he returned to school. The plaintiff paid for him to attend and obtain a degree from Wesleyan University. He obtained a master's degree in liberal studies in 1998 from the university.
After the marriage, but prior to his incarceration, he taught guitar and gave other musical lessons and engaged in significant amounts of charitable work.
The court is not entirely convinced that he was unable to maintain gainful employment before his incarceration.
His current income consists of $60 a week, or $258 a month, in dividends earned on investments he received as a gift from the plaintiff.
At age 62 he will receive $522 a month from social security.
The defendant currently lives in a three-room, third-floor apartment in the north end of Hartford. His rent is $550 a month. He testified that it is all he can afford on his income.
In addition to his relatively low income, he also lives at his current location because he has found that other landlords will not rent to him as he is a felon; the court makes the reasonable inference that landlords are unwilling to permit him to rent from them due to the sexual nature of his offense (as more particularly set forth below).
The plaintiff gifted property and money to the defendant during the marriage; she testified that in late 1997/early 1998 she gave him an amount that was equal to approximately 25% of the $1,600,000 that she inherited from her father, or $400,000. She gave him equities from her Schwab account having a value of approximately $250,000 in December 2007 and a piece of property at 286 Hank's Hill Road, Storrs, Connecticut which was assessed by the town at $134,000 at the time of the gift. The defendant used it as a " base of operations" for his charitable work. He sold it in 2002 or 2003 for approximately $146,000.
The defendant spent most of the money he was gifted. He bought a boat for approximately $7,000; musical instruments for approximately $10,000; gave money to a niece toward her college tuition in the amount of approximately $13,000-15, 000; paid off his college loans in the amount of approximately $20,000; bought a car; used it for legal fees in connection with his arrest and conviction in federal court; and invested in technology stocks. Much of his investment in technology stocks has been lost due to market fluctuations.
The defendant's financial affidavit indicates he owns a 2008 Pontiac Torrent having a value of approximately $12,000. He owns stocks and mutual funds valued at approximately $148,000. He also owns several musical instruments worth approximately $11,800.
The defendant's health during the marriage was and presently is not good. He was diagnosed with Type 2 diabetes in the spring of 1991. During the marriage, the plaintiff paid for the defendant to attend a weight loss center in an effort to help him maintain a healthy weight. He continues to be unable to do so. He has been diagnosed with an eating disorder. His inability to control his eating causes fluctuations in his sugar levels which contributes to his ill health.
He had a heart attack in 2001. He had additional heart attacks in 2010 and 2011. The defendant has asthma which he controls with an inhaler.
He suffers from sleep apnea which may interfere with his ability to function from time to time.
The defendant called a psychiatrist, Dr. Frank Knoblauch, as a witness. Dr. Knoblauch has diagnosed the defendant with the following: mood disorder NOS, anxiety disorder NOS, sexual disorder NOS, eating disorder NOS, attention-deficit hyperactivity disorder NOS and stuttering. He has also been diagnosed with personality disorder NOS.
The defendant's doctor is aware of the defendant's incarceration for child pornography and is addressing the defendant's sexual disorder and the other disorders in his treatment.
Dr. Knoblauch believes that the defendant will require years of continuing treatment due to the complexity of his issues and multiplicity of psychiatric and physical disorders. He testified he would be surprised if the recommended course of psychotherapy took less than five years.
While Dr. Knoblauch believes the defendant to be capable of looking for work, he does not believe that, due to his instability, he would be able to hold a job.
Clearly, it is within the court's discretion to accept or reject the opinions of expert witnesses. Evans v. Taylor, 67 Conn.App. 108, 113 (2001).
The defendant takes medication, including Zoloft and Lipitor.
During the marriage, the plaintiff, with her money, paid for all of the family's vacations and all household bills, including the defendant's credit card bill. Despite the defendant not working, the plaintiff did the yard work and retained a housekeeper.
After the defendant returned to the marital home from the halfway house (as more particularly set forth below), the plaintiff paid for his mandated sexual offender treatment and therapy.
After the parties separated and the defendant left the marital home, the plaintiff ceased paying for his treatment, therapy and medication.
3. Prenuptial Agreement. Pursuant to Practice Book § 25-2A, the plaintiff in her complaint specifically demanded in her prayer for relief the enforcement of the parties' prenuptial agreement; the defendant has sought to avoid the same.
The parties executed the prenuptial agreement on February 26, 1991. The agreement was prepared at the behest of the plaintiff. The defendant was provided with an opportunity to review the same and independent counsel was retained for his benefit.
The prenuptial agreement, having been executed prior to 1995, is not governed by General Statutes § 46b-36a, but rather by the common-law principles set forth in McHugh v. McHugh and its progeny. McHugh v. McHugh, 181 Conn. 482 (1980). For the prenuptial agreement to be enforceable the court must find: (i) the contract was validly entered into; (ii) the terms do not violate statutory law or public policy; and (iii) the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work an injustice. Parties to a prenuptial agreement must provide to the other " fair and reasonable disclosure" of their property. Friezo v. Friezo, 281 Conn. 166, 181-83 (2007). See also Winchester v. McCue, 91 Conn.App. 721 (2005).
In McHugh v. McHugh, 181 Conn. 482, 486 (1980), the Supreme Court held that: " The duty of each party to disclose the amount, character, and value of individually owned property, absent the other's independent knowledge of the same, is an essential prerequisite to a valid ante-nuptial agreement containing a waiver of property rights."
The party seeking to avoid a prenuptial agreement bears a heavy burden. Crews v. Crews, 107 Conn.App. 279 (2008), aff'd 295 Conn. 153 (2010).
The agreement was reviewed by the parties prior to the marriage and executed in the presence of witnesses. The signatures of the parties were acknowledged by defendant's counsel.
The agreement recites that the parties entered into it " with knowledge and full intention that it shall bind both of them no matter how their respective financial circumstances may change ..." Attached to the agreement as Exhibits A-1 and A-2 are the disclosure of the income and assets of the plaintiff and defendant, respectively, as of the time of the execution of the agreement.
The agreement provides that in the event of the dissolution of the marriage, each of the parties waives and releases any and all claims or right for support, separate maintenance, alimony or similar payment by the other or in the " Separate Property" owned by each. Separate property is defined as the property listed on the schedules A-1 and A-2, replacement or substitute property and/or after acquired property and increases in value of such property. Further, any amount received by the other by " gift, bequest, devise or inheritance shall be deemed to be such party's Separate Property."
Despite the provisions of the agreement from which one may infer that the terms of the agreement would not be varied in the event of a change in the financial condition of one or both of the parties, the agreement, in paragraph 2, allows for " payment" to be made to either party in the event of his or her disability.
The court finds the agreement was validly entered into by the parties and that its terms do not violate statutory or public policy.
The defendant claims the agreement is not valid as there was insufficient disclosure of the trust assets ultimately bequeathed to the plaintiff; that such trust assets for which she is a beneficiary are so far beyond the contemplation of the parties at this time, that the enforcement of the agreement would work an injustice. The court does not agree.
On the schedule of assets, the plaintiff listed income from a series of family trusts and a trust under a will of her grandfather over which her father retained a special power. The existence of the trusts was disclosed as was the fact that it was her father who controlled how much of the remainder interest therein the plaintiff would receive. The plaintiff credibly testified that she did not know the value of the trusts held by her father and she would have had no ability to control that which would ultimately be bequeathed to her. She did disclose the expectancy of a receipt of trust assets and income. The trust documents were not introduced into evidence. The plaintiff credibly testified that she does not have the power to invade the corpus of the irrevocable trusts, and that power is held by an independent trustee. Such testimony was not credibly controverted. Based on the evidence before it, the court concludes in accordance with the holding of Tremaine v. Tremaine, 235 Conn. 45 (1995), that the value of the trust corpus is not considered an asset of the plaintiff.
Accordingly, for all the above reasons, the court does not find the inheritances and bequests the plaintiff received after the marriage, nor the increase in the value of disclosed assets, to be so far from the contemplation of the parties as to work an injustice. The court finds the financial disclosure by the plaintiff was fair and reasonable.
The court finds the Prenuptial Agreement to be valid and enforceable.
4. Breakdown of the Marriage. In December 2007, early in the morning, armed federal agents banged on the door of the home in which the parties were living. After the plaintiff answered the door, in her bathrobe, the agents shoved her aside and then isolated her in the living room; they did not indicate why they had come. The agents stayed in the home for approximately five hours.
Not until a later date did the plaintiff learn that the appearance of the federal authorities at her door was due to the defendant's possession of child pornography. He was ultimately arrested and convicted in federal court. He was sentenced to fourteen months incarceration and began serving time in a federal penitentiary in July 2009. In May 2010 he was released to a halfway house. He left the halfway house in July 2010 and returned to the marital residence.
The plaintiff stood by the defendant during his trial and provided a statement to the judge during sentencing. Her support of the defendant included paying his defense costs, including legal fees. She and one of her sons drove him to the penitentiary and she visited him a few times while he was incarcerated. As he was convicted of a sexual offense, the plaintiff was required to take non-offender treatment courses so that she would be able to supervise him after his release whenever there would be children present, including the plaintiff's grandchildren.
The marriage did not go well after the defendant's release from incarceration. At some point, he was again arrested. He was visited by his federal probation officer along with Manchester police. After his second arrest, he left the marital home and lived in a series of motels.
The plaintiff clearly regrets supporting and standing by the defendant during his criminal trial and thereafter. Despite her earlier support, she has come to realize the impact his actions have had on her and her family. From her demeanor and testimony it is clear that the plaintiff strongly desires to dissociate herself from the defendant.
The court finds the defendant to be at fault for the breakdown of the marriage.
Although the prenuptial agreement states that the waiver and release of all claims or right for support, alimony, payment and property division is made regardless of fault, and as the agreement further provides that " except to the extent, as a matter of law, either party might be entitled to such a payment in the event of his or her disability or incapacity, " the court finds the attribution of fault of the defendant in the break-up of the marriage to be relevant.
ADDITIONAL FINDINGS AND ORDERS
The court makes the additional findings and enters the following orders:
A. Jurisdiction and Dissolution
The parties lived in the State of Connecticut for at least one year before filing the dissolution complaint.
All statutory stays have expired.
The allegations of the complaint have been proven to be true.
The marriage has broken down irretrievably.
A decree of dissolution may enter.
B. Enforcement of Prenuptial Agreement
The prenuptial agreement executed February 26, 1991 is valid and enforceable and is incorporated herein by reference thereto.
Although the prenuptial agreement does not define what, as a matter of law, may entitle a party to payment in the event of his or her disability or incapacity, based on the facts above found, the court finds the defendant to be disabled or incapacitated and so considers whether the defendant " might" be entitled to payment as a result thereof.
The court also finds the prenuptial agreement does not specify what type of " payment" might be found to be appropriate in the event of the disability or incapacity of a party. The court, after a review of the entirety of the prenuptial agreement, interprets the use of the term " payment" to refer to payment for future support or maintenance in the event of a party's disability or incapacity.
The court takes note also that the defendant's proposed orders do not seek a division of the property owned by the plaintiff, but rather seek an award of alimony payable in installments or in a lump sum.
The court is not convinced by the testimony of Dr. Knoblach and the defendant that the defendant is totally or fully incapacitated or disabled and unable to work.
The court recognizes that, absent a valid prenuptial agreement providing to the contrary, a common-law and statutory duty of support may be created by marriage. Smith v. Smith, 249 Conn. 265, 275 (1999) (" the purpose of both periodic and lump sum alimony is to provide continuing support"). Mickey v. Mickey, 292 Conn. 597, 615-6, (2009). The court has discretion as to whether to issue an order of periodic alimony, lump sum alimony or both.
The court has considered that while the defendant may be disabled or incapacitated due to his mental and physical disorders, his need or desire for support arises also as consequence of his prior criminal offense which has limited his choice of living accommodations and employment opportunities. The defendant alone is responsible for such limitations.
The court finds, however, that the pre-nuptial agreement does not require that the recipient of " payment" due to disability or incapacity be totally disabled or incapacitated. The court further finds the defendant to be partially disabled or incapacitated.
In determining if a " payment" for the defendant due to his disability or incapacity is appropriate, the court has considered, among other things, the factors set forth in General Statutes § 46b-82. The court has considered and based the payment award as set forth below on the net income of the parties.
The court finds that an appropriate way of assuring the defendant some security in the future, to allow the plaintiff to meet what obligation she " might" have under the prenuptial agreement to provide some continuing support or maintenance to the defendant, particularly over the five years that may reasonably be required for his therapy and treatment and yet to allow the plaintiff to dissociate herself from him, is to order lump sum alimony, nontaxable to the plaintiff and not tax deductible by the defendant. See, Dubicki v. Dubicki, 186 Conn. 709, 714, n. 2. (1982).
The court awards lump sum alimony/support to the defendant in the amount of $140,000. The court orders such amount to be paid in installments as follows: (i) $50,000 on or before December 15, 2012; (ii) $50,000 on or before March 15, 2013; and (iii) the balance on or before June 15, 2013. Nothing herein shall preclude the plaintiff from paying the entirety of the lump sum of alimony sooner. If any installment is not paid when due, simple interest shall accrue thereon at the rate of 3% per annum until paid.
No alimony or support is awarded to the plaintiff.
C. Assets and Liabilities
In the event the 2008 Pontiac Torrent listed on each party's financial affidavit is in fact one and the same vehicle, the court awards the vehicle to the defendant.
Other than as set forth above, each party shall retain their own assets and shall be responsible for their own liabilities, including, without limitation, the liabilities set forth on their respective financial affidavits. Each party shall indemnify and hold the other harmless in connection with their respective debts and liabilities.
D. Medical Insurance
Each of the parties shall maintain, at their own expense, medical and dental insurance coverage for themselves.
E. Income Tax Filings and Tax Exemptions
Unless both parties agree, each party shall file separate tax returns for all tax years for which they were married.
F. Tax Indemnification
Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that parties' income or deductions.
G. Fees
Each party shall be responsible for the payment of their respective attorneys fees and costs incurred in connection with the prosecution and defense of the dissolution proceeding.
H. Effectuation of Orders
Each party is ordered to sign whatever documents are necessary, and as presented to them by the other party, to effectuate these orders within ten days of presentment.
Unless otherwise specifically set forth herein, these orders are effective immediately.
SO ORDERED.