Opinion
No. FA02-0563811S
April 30, 2004
MEMORANDUM OF DECISION
The parties in this limited contested dissolution of marriage action were married on October 9, 1999 in Noank, Connecticut. One party has resided in this state for at least twelve months prior to the filing of the complaint. Two minor children have been born issue of the marriage; Callie Colgan Clark born July 21, 2001 and Tessa Emma Clark also born July 21, 2001. No other minor children have been born to the wife since the date of the marriage and neither party has been the recipient of financial assistance from the State of Connecticut. The marriage of the parties has broken down irretrievably.
The plaintiff wife is 38 years of age and she is in good health. She has a bachelor's degree in child study and has been employed during the marriage in the childcare field. Presently, she is employed as an interim director and she earns $36,000 per year. The court finds that this is her present earning capacity. Her financial affidavit indicates gross wages of $692.50 per week and net wages of $539 per week. The affidavit reflects expenses of $876 per week and a weekly payment of $92 on liabilities.
Her liabilities consist of a CitiBank credit card account, that has a balance of $4,488 and an MBNA credit card account, that has a balance of $8,055. The defendant also has an obligation to her father in the amount of $7,185. These three liabilities will be discussed below.
The parties own a 1995 Volvo wagon, valued at $4,520, that the plaintiff drives. This vehicle was purchased with the proceeds of a second mortgage on the family home. The balance on the second mortgage is $9,446, and it also will be discussed below.
The plaintiff has a 401(k) retirement account that has a balance of $8,330. The plaintiff had another retirement account that contained $8,000 which was liquidated during the marriage in order to pay marital debt and expenses.
The defendant husband is 34 years of age. Because the defendant suffered from attention span disorder, he was placed in a specialized residential high school from which he graduated. He has taken some classes at Mitchell College. The defendant has previously been employed in jobs that required strenuous activity which caused him some back problems. These problems do not prevent him from working full time. Presently he is employed in the garden and plumbing departments of Home Depot. He earns $12.60 per hour and works a 40-hour week for gross wages of $504 per week. His affidavit shows net wages of $382 per week and weekly expenses, exclusive of child support and child care, of $357 per week. He has liabilities of $5,071 and liabilities expenses of $25 per week.
During the marriage the defendant often worked sixty to seventy hours per week at various jobs. He testified that he has the ability to earn additional income from side jobs. This earning capacity from side jobs will be considered in formulating a child support order.
The defendant has a 1994 Jeep valued at $3,000 which is unencumbered. For approximately fifteen years the defendant has owned a 1946 Willys. He recently offered it for sale for $8,000 and he refused an offer of $5,000 for it.
The parties own a home located at 351 Ocean Avenue, New London, Connecticut where the plaintiff and the minor children reside. This home was purchased on September 15, 2000 for $136,000. The parties were fortunate to receive a $25,000 gift from the defendant's parents which they used as a down payment for this home. The parties agree it has a present value of $164,750 and they further agree that it is encumbered by two mortgages; the first has a balance of $109,738 and the second, used for the Volvo, has a balance of $9,446. Much of the testimony dealt with the actions and events concerning this home. In January 2001, the parties received $8,000 from the plaintiff's father, which both parties acknowledged was a loan. Although there was no writing evidencing a loan, the testimony of the parties, an amortization schedule (Plaintiff's Exhibit 3), and a record of monthly payments persuade the court that this obligation should be treated as a joint liability. The present balance of this obligation, as mentioned earlier, is $7,185.
The plaintiff claims that $9,000 of her credit card debt is marital debt that the defendant should partially pay. The court has reviewed the credit card statements and finds that at least $9,000 is marital debt.
The parties must share equal responsibility for the breakdown of this marriage. It appears that they could not deal with the emotional and financial pressures brought about by home ownership and the birth of twin daughters.
To their credit, the parties have stipulated to joint legal custody of the minor children with primary physical custody to the plaintiff with a visitation schedule for the defendant. Both parties request additional orders regarding the visitation in order to address problems that they perceive. The court has carefully considered the testimony regarding the issues surrounding the visitation arrangement and has entered orders which it believes are in the best interest of the minor children. Hopefully, once the emotional strain of this action dissipates, the parties will be better able to communicate about their children.
The plaintiff has submitted two child support guidelines worksheets. The first work sheet shows the defendant's present income at Home Depot, and it indicates a presumptive current support amount of $128 per week. The second work sheet shows a gross income for the defendant of $830 per week, his income in January 2003 when he was working part time at Home Depot and full time at a landscaping job. The presumptive current support shown on this second worksheet is $186 per week. The defendant submitted a guidelines worksheet using his present income at Home Depot and it indicates a presumptive current support amount of $123 per week.
In view of the defendant's past work history, and his ability to work additional hours, it is inequitable and inappropriate to order the presumptive support that is based only on the defendant's job at Home Depot. One of the side jobs the defendant had was working at a marina where he earned $10 per hour. The court finds he has the ability to work an additional ten hours a week at $10 per hour. The court has utilized FinPlan and imputed an earning capacity income of $604 per week to the defendant. The indicated presumptive current support is $139 per week. Child care and unreimbursed medical expenses for the minor children are shared, 68% to the plaintiff and 32% to the defendant. A copy of the guidelines worksheet prepared by the court is attached hereto.
The court has considered the provisions of General Statutes § 46b-81 in formulating the assignment of property in this case. Both parties worked hard and sacrificed during the marriage. They have accumulated liabilities, however, they have a significant asset in the form of equity in the family home. The court concludes the parties should equally share the burden of the liabilities and the benefit of the asset. Specifically, the first mortgage of $109,738, the second mortgage of $9,446, the obligation to Mr. Pitt in the amount of $7,185 and $9,000 of marital credit card debt should be assessed equally against the parties. The total of these liabilities is $135,369. If this amount for liabilities is subtracted from the value of the home, $164,750, the resulting equity is $29,381. An equal division would give each party $14,690.
The defendant proposes that the house be sold to unlock his share of the equity. The plaintiff proposes to buy out the defendant's interest so she can retain the home. If the plaintiff desires to retain the home, the cost of a hypothetical sale of the home should not be deducted from the equity to determine the value of defendant's share. It would not be fair to the defendant to charge him with the cost of a sale that the plaintiff does not want. Before the court is the present value of the home, not the net proceeds from its sale.
The plaintiff will have forty-five days from the date of judgment to pay the defendant the sum of $14,690 for his interest in the home. If she makes this payment, she will be responsible for, and hold the defendant harmless from, the aforementioned liabilities. If she is unable or unwilling to pay said sum to the plaintiff, the house will be sold and the aforementioned liabilities will be paid and the net proceeds will be divided equally.
The court concludes it is fair and equitable for the plaintiff to retain her 401(k) account and the Volvo and it is fair and equitable for the defendant to retain his 1994 Jeep and his 1946 Willys.
Neither party seeks alimony. Having considered the provisions of § 46b-81, the court concludes neither party should receive an award of alimony.
ORDERS
1. The marriage is dissolved on the grounds of irretrievable breakdown.
2. The plaintiff and the defendant shall have joint legal custody of their minor children with primary physical custody with the plaintiff subject to the following parental access to the children: (a) the defendant shall have the minor children on alternate weekends from Friday at 4:30 p.m. to Sunday at 5:00 p.m. and for dinner weekly on Tuesdays and Thursdays.
The father may utilize a third party to pick up and/or care for the children if necessary. Unless agreed to by the parties, the pick up and drop off shall take place at the plaintiff's residence.
Holiday visitation shall alternate or be shared as mutually agreed by the parties.
3. The defendant shall pay to the plaintiff child support in the amount of $139 per week by way of immediate wage withholding. The defendant shall also contribute 32% for any unreimbursed health-related expenses for the children and work-related daycare expenses and the plaintiff shall contribute 68%.
4. If the children are not eligible for Husky insurance, the defendant shall maintain health insurance for the minor children as available through his employment. In the event such insurance is not available though the defendant's employment, the plaintiff shall maintain health insurance for the benefit of the minor children as available though her employment. If neither party has health insurance for the minor children available to them, they shall cooperate in obtaining Husky insurance for the minor children.
5. The plaintiff and the defendant shall each claim one child as a dependency exemption for state and federal tax purposes.
6. The parties are to exchange Federal income tax returns no later than April 20th for each year there is a child support obligation.
7. If the plaintiff tenders the sum $14,690 to the defendant within forty-five days of the date of judgment, the defendant shall quit claim his interest in the marital home known as 351 Ocean Avenue, New London, Connecticut to the plaintiff. If the defendant quit claims his interest to the plaintiff, she shall assume and pay, and hold the defendant harmless from, the present first mortgage and second mortgage upon the premises, and the obligation to Walter Pitt.
If the plaintiff does not tender said sum in the time allowed, the marital home shall be listed for sale at a price agreeable to the parties and sold at a price agreeable to them. The court retains jurisdiction over all matters pertaining to the sale of the property. Upon sale of the property, after payment of the mortgages and customary expenses of sale, including commission and attorney fees, the following items shall be paid from the net proceeds: the balance remaining on the obligation to Walter Pitt and $9,000 to the plaintiff for reduction of joint marital credit card debt. Thereafter, each party shall receive 50% of the remaining proceeds.
8. The defendant is to maintain his existing $20,000 life insurance policy and shall designate the minor children as beneficiaries. In the event the defendant is eligible to receive additional life insurance through his employer, he shall, at his expense, obtain such insurance to a maximum total amount of $150,000. He shall name the minor children as beneficiaries of said policy until their majority.
9. The court shall retain jurisdiction to enter an educational support order.
10. The plaintiff is to retain the 1995 Volvo wagon and her YMCA retirement plan 401(k), together with the bank accounts and Meade Paper Company stock shown on her financial affidavit.
11. The plaintiff is to retain the 1994 Jeep and the 1946 Willys shown on his financial affidavit.
12. Except as provided for herein, each party is to pay the liabilities shown on their respective financial affidavits and shall hold the other party harmless therefrom.
13. The personal property of the parties shall be divided by mutual agreement. If the parties are unable to reach an accord regarding personal property, the matter shall be submitted to binding arbitration and the cost shall be divided equally between the parties.
14. Each party shall pay their respective attorneys fees.
15. The plaintiff is restored her maiden name of Jennifer Pitt.
Domnarski, J.