Opinion
LLIFA156011911S
12-11-2015
Katieann Pirog v. Kelly A. James
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John D. Moore, J.
INTRODUCTION
Trial in this dissolution action occurred on October 29, 2015. Both parties appeared and were represented by counsel.
DISCUSSION
This is a contested divorce, but the only issues involved are financial ones. The plaintiff and the defendant were married on July 25, 2008, in Long Beach, California. There are no children born as issue of this marriage. The plaintiff is not expecting a child. The plaintiff resided in Connecticut for more than one year before she filed this action. All statutory stays have expired. The court has both personal and subject matter jurisdiction in this case. Neither party is receiving or has received aid or assistance from the State of Connecticut or from a city or town in Connecticut. The parties agree and the court concludes that the marriage has broken down irretrievably with no hope of reconciliation.
When the parties were married, the defendant was known as Frank Edward Rogers, Jr. The defendant changed her name legally to Kelly Ansley James on December 9, 2014. In this opinion, because of the name change, the court will refer to the parties as the plaintiff and the defendant and will employ the feminine form of pronouns when referring to the defendant.
The plaintiff's complaint seeks a dissolution of the marriage, an equitable distribution of the real and personal assets of the marriage, and other equitable relief.
In her proposed order, the plaintiff asks the court to order the following elements of relief. Neither party will receive lump sum or periodic alimony, except for $1 per year of alimony for debt indemnification purposes only. The defendant will quitclaim her interest in the marital home to the plaintiff. Each party will bear her own attorneys fees. Each party will pay the debts as reflected on her individual financial affidavits and to indemnify and hold the other party harmless as to these debts. Each party will pay for her own medical insurance. The parties shall make an equitable division of their personal property; if they are unable to do so, the issue of this division will be referred to an arbitrator whose fee will be split equally between the parties and the court will retain jurisdiction over the arbitration award in order to make it a court order. The plaintiff will retain her teacher's retirement fund free of any claim by the defendant.
The defendant did not file a counterclaim, but did file a proposed order. In this proposed order the defendant asked the court to award the following elements of relief. The defendant will quitclaim her interest in the marital home to the plaintiff; the plaintiff will have the defendant's name removed from all utility bills within ninety (90) days and shall indemnify and hold harmless the defendant from the mortgage and all other costs attributed to the marital home. The plaintiff will transfer one-half of that portion of the plaintiff's teacher's retirement account that accrued from the date of the marriage through the date of dissolution to the defendant. Each party shall retain ownership of her respective car and the plaintiff shall be solely liable for the balance on her loan. The plaintiff shall permit the defendant to retrieve the following items of personalty from the marital home: an external WiFi antenna (value $30); an ASUS Netbook laptop (value $250); a whole house DC to AC power inverter (value $500); a mini DC to AC power inverter (value $40); two sets of Skymaster binoculars (value $500); the 27-inch LCD television in the master bedroom, with its mount (value $550); various furniture, including the sofa, love seat, chair, ottoman, coffee table, chaise lounge, and lowboy television stand (value $4,000); the baseball card collection, including the Babe Ruth and Mickey Mantle cards (value $1,000); the piece of the left field foul pole from the original Yankee Stadium (value $200); the autographed Paul O'Neill magazine (value $200); the autographed Derek Jeter picture and plaque (value $300); and the computer attached to the living room television set (value $400). The plaintiff shall pay the defendant $385 per week of alimony for a three-year period beginning on the date of judgment. The plaintiff's alimony obligation shall terminate upon the earliest of the following three events: death of the defendant, remarriage of the defendant, or October 29, 2018. This alimony is to be non-modifiable. Each party shall be solely responsible for the amount of debt listed on her individual financial affidavit.
This account was valued at $38,279.20 as of October 16, 2015. Plaintiff's exhibit 14. Approximately $7,025.36 accrued in this account from its inception in January 2006 through June 2008, Plaintiff's exhibit 23, just prior to the marriage.
General Statutes § 46b-81 governs the trial court pertaining to issues arising from the transfer of marital property and provides in relevant part: " 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 spouse all or any part of the estate of the other spouse. The court may pass title to real property to either party . . . when in the judgment of the court it is the proper mode to carry the decree into effect . . . In fixing the nature and value of the property, if any, to be assigned, the court, after considering all of the evidence presented by each party, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . 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." The court has broad discretion, pursuant to § 46b-81, to assign the property and liabilities of the parties. Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).
The court is not required to afford the same weight to each factor. Calo-Turner v. Turner, 83 Conn.App. 53, 62, 847 A.2d 1085 (2004). Nor must the court make express findings as to each factor. Caffe v. Caffe, 240 Conn. 79, 82, 689 A.2d 468 (1997). It is sufficient that the court's factual findings indicate that the above factors were considered and that the evidence supports the equity of the division. See, e.g., Casey v. Casey, 82 Conn.App. 378, 384, 844 A.2d 250 (2004) (inequitable division of property not supported by factual findings); Greco v. Greco, 70 Conn.App. 735, 740, 799 A.2d 331 (2002) (within court's discretion to award the plaintiff sixty-seven percent of the assets after finding that the defendant's infidelity was the cause of the breakdown of the marriage, a factor that the court was required to consider pursuant to General Statutes § 46b-81).
" A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties' assets. Casey v. Casey, [ supra, 82 Conn.App. 386-87]; Werblood v. Birnbach, 41 Conn.App. 728, 735-36, 678 A.2d 1 (1996). '[B]ecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.' Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993). Furthermore, 'the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property. Schmidt v. Schmidt, [ supra, 180 Conn. 191].' Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004)." McKenna v. Delente, 123 Conn.App. 146, 162, 2 A.3d 38 (2010) (as part of the dissolution judgment, the court ordered the defendant to repay loans and promissory notes she executed in favor of the plaintiff during their marriage), abrogated in part on other grounds by Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011). " The extent to which the efforts of one spouse may have led to an increase in value of property without any monetary or nonmonetary contribution by the other spouse after the parties' separation should be taken into account by the trial court in determining the division of property incident to a dissolution of marriage action." Zern v. Zern, 15 Conn.App. 292, 296, 544 A.2d 244 (1988).
General Statutes § 46b-82 governs alimony awards in dissolution actions and provides, in relevant part: " (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 . . . 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 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 section 46b-81 . . ."
An award of alimony has a different purpose than an award of property. The purpose of alimony is to provide continuing support, whereas the purpose of a property division is to equitably distribute the marital property to each spouse. Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023 (1999). " There is no absolute right to alimony . . . Awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court." (Citations omitted.) Weinstein v. Weinstein, 18 Conn.App. 622, 637, 561 A.2d 443 (1989). " The court is to consider [all the statutory] factors in making an award of alimony, but it need not give each factor equal weight." (Internal quotation marks omitted.) Costa v. Costa, 57 Conn.App. 165, 174, 752 A.2d 1106 (2000). The factors are:
length of the marriage, Loughlin v. Loughlin, 280 Conn. 632, 644-46, 910 A.2d 963 (2006) (prior marriage and period of cohabitation not to be included);
cause of the breakdown;
age of parties, Simmons v. Simmons, 244 Conn. 158, 180, 708 A.2d 949 (1998) (disparity in ages);
health of parties, Tevolini v. Tevolini, 66 Conn.App. 16, 783 A.2d 1157 (2001) (if party alleges health reasons for alimony, other party has right to refute claim, but physical examination can only be ordered for good cause); see also Lucas v. Lucas, 88 Conn.App. 246, 250, 869 A.2d 239 (2005) (" finding by the Social Security Administration that the defendant is disabled for purposes of social security disability benefits does not preempt a court from making its own independent determination concerning the defendant's ability to work");
station in life;
occupation;
amount and sources of income; this can be either actual earned income amount or a court determination of a party's earning capacity;
vocational skills;
education;
employability;
estate and needs of parties, Zahringer v. Zahringer, 262 Conn. 360, 815 A.2d 75 (2003) (payor's income had greatly increased), overruled in part by Dan v. Dan, 315 Conn. 1, 14 n. 11, 105 A.3d 118 (2014) (" To the extent that Zahringer suggests that the supported spouse was entitled to share in any improvements in the supporting spouse's standard of living after the divorce, it is hereby overruled." [Emphasis added.]); Panganiban v. Panganiban, 54 Conn.App. 634, 736 A.2d 190 (defendant's winning of lottery substantially increased his ability to pay, regardless of the plaintiff's previous standard of living), cert. denied, 251 Conn. 920, 742 A.2d 359 (1999); Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005) (lottery winnings voluntarily shared prior to dissolution raised standard of living for both parties);
division of property;
custody arrangements, and the desirability of the custodial parent's securing employment.
The court, however, is not limited to the statutory factors. See Robinson v. Robinson, 187 Conn. 70, 444 A.2d 234 (1980) (egregious conduct); Sands v. Sands, 188 Conn. 98, 448 A.2d 822 (1982) (state's interest in support payments), cert. denied, 459 U.S. 1148, 103 S.Ct. 792, 74 L.Ed.2d 997 (1983). The court must base its alimony order on the parties' net income. Cleary v. Cleary, 103 Conn.App. 798, 801-04, 930 A.2d 811 (2007); Ludgin v. McGowan, 64 Conn.App. 355, 780 A.2d 198 (2001). " [P]ayments [including gifts and loans] that are made regularly and consistently to one of the former spouses are to be considered by a trial court in setting financial orders." Zahringer v. Zahringer, supra, 262 Conn. 369. Contributions from third parties that are gifts may be considered income; whereas, contributions that are loans are liabilities and are not to be considered. Id., 365. The alimony order may provide for increases based on future additional income. Guarascio v. Guarascio, 105 Conn.App. 418, 421-25, 937 A.2d 1267 (2008).
The Supreme Court has held that when a financial support order made pursuant to either General Statutes § 46b-82 or § 46b-86 is based on a party's earning capacity, the court must specify on the record the dollar amount that the court has determined as the earning capacity. Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013). " [T]he trial court should attempt to provide as precise an estimate as possible based on the evidence presented by the parties." Id., 120 n.8. " Earning capacity . . . is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocation skills, employability, age and health . . . When determining earning capacity, it . . . is especially appropriate for the court to consider whether [a person] has willfully restricted his [or her] earning capacity to avoid support obligations." (Citation omitted; internal quotation marks omitted.) Id., 114.
" [R]ehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency." Bornemann v. Bornemann, 245 Conn. 508, 539, 752 A.2d 978 (1998); Mongillo v. Mongillo, 69 Conn.App. 472, 478, 794 A.2d 1054, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002). " Another reason [for time limited alimony] is to provide support for a spouse until some future event occurs that renders such support less necessary or unnecessary." (Internal quotation marks omitted.) Clark v. Clark, 66 Conn.App. 657, 668-69, 785 A.2d 1162 (future benefits from an annuity and pension plan), cert. denied, 259 Conn. 901, 789 A.2d 990 (2001). Such events may be the child(ren)'s majority, bond maturation, trust disbursement, or mortgage maturation. Wolfburg v. Wolfburg, 27 Conn.App. 396, 400, 606 A.2d 48 (1992) (parties had agreed during the marriage that wife would limit her employment during the minority of the child); Henin v. Henin, 26 Conn.App. 386, 393, 601 A.2d 550 (1992) (mortgage note maturing); Porter v. Porter, 61 Conn.App. 791, 796-97, 769 A.2d 725 (2001) (reference to children completing college was not improper post-majority support but a reasonable time when mother could become self-sufficient). " Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency." (Internal quotation marks omitted.) Roach v. Roach, 20 Conn.App. 500, 506, 568 A.2d 1037 (1990). " The particular length of time needed for alimony can sometimes be established by predicting when future earnings, based on earning capacity as known at the time of the dissolution, will be sufficient for self-sufficiency." (Internal quotation marks omitted.) Cooley v. Cooley, 32 Conn.App. 152, 165, 628 A.2d 608, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993).
A specific finding is not required as to the future event, but the record must indicate the basis for the time limitation. Mathis v. Mathis, 30 Conn.App. 292, 294, 620 A.2d 174 (1993); see also Ippolito v. Ippolito, 28 Conn.App. 745, 752-53, 612 A.2d 131, (ten-year duration of periodic alimony had no basis in the record), cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992); O'Neill v. O'Neill, 13 Conn.App. 300, 312-15, 536 A.2d 978 (two-year term not consistent with facts), cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).
FINDINGS OF FACT
In its division of the parties' real and personal property as set forth below, the court finds and has taken into consideration the following facts. This was a fairly short marriage. It was less than seven years from the date of marriage until the defendant moved out of the marital home this past spring. The plaintiff has been conscientiously and steadily employed since she graduated from college some three years before the marriage. During the marriage, the plaintiff has worked more than one job at a time. During the entirety of the marriage, the plaintiff has been a certified high school teacher, and has additionally worked as a teacher in an after-school program, as a tutor, as a jewelry store clerk, and as a bartender. The plaintiff has both a bachelor's and a master's degree. Her net weekly income, after mandatory tax deductions, is $902. The plaintiff brought the marital home into the marriage. Aside from a brief period after the middle of 2013 when the defendant sold her business and contributed some $200 to $300 per month toward the mortgage, the plaintiff has paid the lion's share of expenses associated with the marital home. In the spring of 2014, after she refinanced the home to get a better interest rate, the plaintiff quitclaimed the home to herself and to the defendant jointly. The marital home is $17,700 underwater at the present time. The plaintiff's normal and reasonable expenses are at, or slightly above, her net income from her main jobs. The plaintiff has approximately $4,000 in savings, a car with equity of $6,448, debt of approximately $10,700, and a life insurance policy worth approximately $4,251. The plaintiff also has a teacher's retirement account now valued at $38,279. Roughly since the inception of the marriage until several months ago, this account increased by approximately $31,253.
The plaintiff contracted melanoma several years ago, a skin cancer that can sometimes reemerge. The plaintiff also has recently experienced symptoms in her gastro-intestinal tract that were being reviewed by physicians at the time of the trial of this matter. These symptoms will, at the least, likely involve surgical procedures for the plaintiff in the near future.
The defendant brought more than $50,000 of debt into the marriage, including education loans and other debt. Though she worked as a security systems salesperson and installer, the defendant never made significant financial contributions to the marital estate. In this regard, the defendant may have suffered from bad timing. After having made $47,924 from security systems sales and installation while working for another entity in 2007, the defendant started her own security systems business in 2008, just as the residential real estate market began to collapse. As a result, the defendant's social security wages were $6,424 in 2008, $3,431 in 2009, $2,257 in 2010, $4,019 in 2011, $3,491 in 2012, and $5,907 in 2013, plaintiff's exhibit 22, when she sold the business for $10,000 to her brother. The defendant then went back to community college for approximately one year before the marriage fell apart in an effort to obtain a degree in molecular biology, with the hopes of obtaining employment in the field of genomic medicine. The defendant currently lives in Florida with her parents. While the defendant presently has no income, her parents are providing the defendant, as a gift, with full room and board, clothing, and other living expenses. The defendant has now or will soon establish residency in Florida and she intends to enroll in the University of Central Florida, perhaps as early as the semester beginning in January 2016, to continue studying molecular biology and genomic medicine. Until the defendant earns her degree, she is qualified only for minimum wage jobs. The defendant testified credibly that (1) she could obtain such a biology degree in about three years, (2) this degree would enable her to work either in a lab or doing research, (3) jobs in this field often pay in the six figure range, and (4) government funding in this area is increasing. The court finds that the defendant had very good grades in community college, will likely achieve her educational goals and will, after her graduation, approximately three years after this judgment, secure employment with a salary in the $75,000 a year range.
The defendant's financial affidavit shows no living expenses.
The defendant owns a car worth $2,000. The defendant bought the living room television currently in the marital home. The defendant's financial affidavit reflected $4,953.03 of current liability; additionally, the defendant owes the plaintiff's grandfather's estate $2,000 for the purchase of a previous automobile.
Plaintiff's exhibit 25 reflects a debt in the amount of $2,500, but the plaintiff listed this debt as being $2,000 on her financial affidavit when she mistakenly listed it as her own debt instead of the defendant's debt.
Both parties testified about an incident that took place between them on or about February 23, 2015. From this testimony and from relevant court files, the contents of which the court takes judicial notice, the court finds that the defendant was arrested, in regard to an incident in which the plaintiff was the alleged victim, on the charges of assault in the third degree and disorderly conduct. As a result, the defendant is presently subject to a full protective order in regard to the plaintiff.
The court finds that the reason for the irretrievable breakdown of the marriage was interpersonal conflicts arising after the defendant clearly disclosed to the plaintiff the defendant's decision to take steps to change her outward gender to conform to her personal gender identity.
THE COURT'S ORDERS
Having reviewed each of the statutory factors cited above and the facts found above, the court orders the following distribution of personal property. Additionally, the court finds that evidence referred to above supports the equity of this division.
The defendant shall quitclaim her interest in the marital home to the plaintiff within thirty days. As of the effective date of the quit claim deed, the plaintiff shall indemnify and hold harmless the defendant from all costs and expenses associated with the marital home, including, but not limited to, taxes and mortgage expenses. Within thirty days of the issuance of the quitclaim deed, the plaintiff will remove the defendant's name from all utility and other bills arising from expenses at the marital home.
Each party will be responsible for the debts set forth in her most recent financial affidavit, with the exception of the $2000 debt listed on the plaintiff's affidavit as being owed to the estate of plaintiff's grandfather for a car purchase. This debt shall be the responsibility of the defendant. Each party shall indemnify and hold the other party harmless for the debts each bears, and shall pay $1 per year in alimony to the other for debt indemnification purposes only. From the date of dissolution, each party shall be responsible for her own medical insurance. The plaintiff will be allowed to keep all of her teacher's retirement account.
The plaintiff shall retain ownership of her 2009 Mitsubishi Galant and shall be solely liable for the balance of the loan on her vehicle. The plaintiff shall indemnify and hold the defendant harmless from any claims arising from the loan owed on the plaintiff's vehicle. The defendant shall retain ownership of her 2005 Chrysler 300.
The court awards the following items of personalty to the defendant: the baseball card collection (item 8 in the defendant's proposed orders); the piece of the left field foul pole of Yankees Stadium (item 9 of the defendant's proposed orders); the autographed Paul O'Neill magazine (item 10 of the defendant's proposed orders); and the autographed Derek Jeter picture and plaque (item 11 of the defendant's proposed orders) and the living room television. The parties will submit to binding arbitration on remaining items of personal property in dispute. The arbitrator shall take into account the value of the items specifically ordered in this decision to go to the defendant when rendering his or her decision. The parties shall bear the expenses and fees of the arbitrator equally. Unless authorized by the presiding criminal judge in Geographical Area 18 (the Bantam geographical area) to do so, the defendant will not be allowed to enter the martial home as part of the arbitration process. If the presiding judge in Bantam does not give the defendant permission to enter the marital home for purposes of examining personalty as part of the arbitration process, the plaintiff shall provide a complete and comprehensive description, including photographs, of each item of personalty at issue in the arbitration to the defendant or her attorney before the start of the arbitration process.
After reviewing the above-cited statutory factors, as well as case law interpreting them, and after having considered the facts found above, the court makes a very modest award of rehabilitative alimony from the plaintiff to the defendant. The court finds that the evidence supports the equity of this award. The court orders the plaintiff to pay to the defendant $75 a month in rehabilitative alimony for a period of three (3) years from the date of this judgment. This payment will be due on the 15th of each month, and will commence during the month following this decision. This alimony obligation shall terminate upon the earliest of the following events: (a) the death of the plaintiff or the defendant; (b) the remarriage of the defendant; or (c) December 31, 2018. If the defendant remarries during this three-year time period, she is to provide notice of that event to the plaintiff by certified mail within two (2) weeks of the date of the marriage.
The marriage of the parties is hereby dissolved. Judgment of dissolution shall enter in accordance with the foregoing findings and orders.
So ordered.