Opinion
HHDFA166066736S
05-24-2017
James Riccio v. Lisa Riccio
UNPUBLISHED OPINION
MEMORANDUM OF DECISION AND ORDER RE DEFENDANT'S MOTION FOR SANCTIONS AND COUNSEL FEES (#119)
Robert Nastri, Jr., Judge.
This action for dissolution of marriage was brought by writ of summons and complaint dated March 8, 2016, and returned to court on March 29, 2016. The court heard testimony from the parties and their witnesses on March 3, 10, 20, and April 17 and 18. The plaintiff adduced testimony from Michael Poulin, the husband of the plaintiff's girlfriend. The defendant elicited testimony from Thomas Crockett, a real estate appraiser, Leo Palliardi, Jr., a financial advisor, Lili Vasileff, a certified financial planner, as well as from Chelsea and Jamie Riccio, the parties' adult daughters. Both parties were represented by counsel.
The court recognizes that it is unusual for children to testify in their parents' divorce. In this case, the two adult women acquitted themselves admirably.
FINDINGS OF FACT
The court finds all facts by a preponderance of the evidence presented. The court has listened carefully to the witnesses and assessed their credibility. " 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 . . . 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 court has reviewed all the exhibits and given them the appropriate weight.
The court has applied all relevant law.
The court unseals all financial affidavits and takes judicial notice of all pleadings in the court's file.
All statutory stays have expired and the court is free to enter a judgment of dissolution.
The plaintiff, James Riccio, was born on August 18, 1953. At the time of the trial he was sixty-three years old. He earned a bachelor's degree in psychology from the University of Connecticut. The plaintiff is in good health.
The plaintiff was employed by the United States Postal Service (" USPS") from 1981 until he retired in 2013, at the age of fifty-nine and one-half, when he was earning a gross annual wage of $53,102. He now works eight hours a week for Intercommunity Recovery Center, Inc., a sobriety support organization. His annual gross income is $33,492 from his pension, $5,824 from his employment and $2,652 from social security; his total weekly gross income is $807.
All amounts are rounded to the nearest dollar.
The defendant, Lisa Riccio, was born on January 13, 1958. At the time of trial, she was fifty-eight years old. She is a high school graduate and spent several semesters in college at various times before and during her marriage. The defendant suffers from knee and back problems.
The defendant has been employed by the Connecticut Light and Power Company--now known as Eversource Energy Service Company (Eversource)--since 1980. The defendant's employment will end when the Eversource division in which she works is sold near the end of 2017. Defendant's Exhibit QQ . The business will relocate outside of Connecticut after the sale and the defendant's slim prospects for re-employment with the business are contingent upon her also moving outside of Connecticut, which she does not plan to do. The defendant will receive one year of salary as severance pay when the business is sold. The defendant's gross income is $1801 per week.
Due to a recent injury, the defendant is receiving workers' compensation of $1,081 per week.
The plaintiff and the defendant--who was born Lisa Wilson--were married on October 20, 1978, in Manchester, Connecticut.
The plaintiff resided in Connecticut for more than one year before he filed the complaint.
The marriage produced two children: Chelsea Riccio, born August 1985 (age thirty-one at the time of trial) and Jamie Riccio, born March 1989 (age twenty-eight at the time of trial).
In 1980, the defendant moved out of the marital home for eight to ten months. The plaintiff filed for a divorce but the parties later reconciled.
Before and in the early years of their marriage, both parties used illegal drugs and drank excessive amounts of alcohol.
After a miscarriage, the defendant stopped using illegal drugs in 1983, although she continued to consume alcohol, albeit at a more moderate rate.
The plaintiff continued to use illegal drugs and drink alcohol to excess until October 13, 1988, his sobriety date, an important milestone in his life. He has remained clean and sober since his sobriety date, an accomplishment for which he is to be commended. He became a member of Narcotics Anonymous, Alcoholics Anonymous and Gambler's Anonymous, attending meetings every day.
The organizations are referred to collectively as support organizations.
In 1986, the plaintiff entered into an extramarital affair with Sharon Poulin.
The plaintiff continued his relationship with Ms. Poulin for several years but ended it to focus on strengthening his marriage. Plaintiff's Exhibit 1 .
After the birth of her first child, the defendant modified her schedule to work part time. She modified her work schedule further after the birth of her second child. The defendant then returned to full-time employment in 1992.
Sometime after the birth of their children, the end of the plaintiff's relationship with Ms. Poulin and his sobriety date, the parties' marriage strengthened as they focused on raising their daughters. The defendant was responsible for getting the children up, fed and to school in the morning. The plaintiff worked an early shift for the USPS so he could be home with his daughters in the afternoon. The defendant was responsible for preparing dinner, driving the children to their extracurricular activities, supervising their homework, bathing them and getting them ready for bed. It was an arrangement that worked well.
The family ate dinner together every night before the plaintiff attended a meeting of a support organization, which he did almost every night. The plaintiff was also actively involved in multiple bowling leagues. The court credits the plaintiff's testimony that bowling became the equivalent of a part-time job for him. He was out of the house attending support meetings and bowling most evenings from right after dinner until after the children were in bed. The plaintiff and the defendant were good parents in every respect. The years spent raising their children were the best years of the parties' marriage.
When Chelsea and Jamie were playing high school sports, the parties attended nearly every game together, although the defendant was responsible for getting the children to and from practices in the evenings because the plaintiff was busy with his support organizations and bowling.
The defendant--and when they were older, Chelsea and Jamie--supported the plaintiff's sobriety. The defendant did not participate in the plaintiff's considerable bowling activities due to her back and knee issues and her family obligations but she was a regular participant in the events run by the plaintiff's support organizations, such as dinners and dances. Eventually, the parties' social life together centered on those events. The defendant's circle of friends became the people in the support organizations or their spouses. The defendant developed close friendships with the members of those organizations and their spouses, sometimes independent of their friendships with the plaintiff.
The defendant was a regular attendee--as were Chelsea and Jamie when they were older--at the plaintiff's annual sobriety anniversary celebration. The defendant missed only one anniversary celebration in twenty-eight years. Each year at the anniversary celebration, the plaintiff made a point of publically thanking the defendant for her support of his sobriety and of noting how proud he was of his marriage.
During the marriage the defendant returned to college for a while but dropped out to focus on the plaintiff's sobriety and her family.
The plaintiff's claim that the defendant did not support his sobriety, did not want to be with him, drank to excess, did not like minorities, knew he wanted a divorce long before he told her he was getting one, was responsible for his estrangement from his daughters and was a spend-thrift is simply revisionist history belied by the significant evidence to the contrary.
It is clear to the court from their testimony that these young women love both their parents and are grateful to both for the loving home in which their parents raised them, any current rift notwithstanding.
The defendant did not consume alcohol from 1984 to 2004 when she took on new responsibilities at Eversource and started to consume alcohol socially. The defendant's occasional use of alcohol did not impair her parenting ability.
After Chelsea and Jamie were graduated from college and left the home, the defendant focused on spending more time with the plaintiff as a couple but unbeknownst to her, the plaintiff resumed his extramarital affair with Ms. Poulin.
The plaintiff rekindled his relationship with Ms. Poulin in 2013 although he continued to be sexually intimate with the defendant until the time in February 2016 that he told her he wanted a divorce
From 2013 forward, the plaintiff carried on his extramarital affair while deceiving the defendant into believing the parties were a loving couple and maintaining a sexual relationship with her. Defendant's Exhibit PP . In fact, the plaintiff essentially led two, parallel lives. He continued to travel and engage in a variety of social activities with the defendant while he did the same with Ms. Poulin, even joining a bowling league with her and her children.
The plaintiff accompanied the defendant on a cruise, on trips to Rhode Island, Cape Cod, New York and on two trips to Jamaica with friends from one of the plaintiff's support organizations. Defendant's Exhibits LL, MM NN, and OO . The day after their return from the second of those two trips, the plaintiff told the defendant he wanted a divorce.
The defendant supported the plaintiff's decision to retire from the USPS in 2013, believing and expecting he would get another full-time job. The parties had no savings, supported two mortgages, were helping their daughters with their school loans and carried car loans. The parties could not support their lifestyle and debt without two incomes.
In anticipation of, and in preparation for, the plaintiff's retirement, the parties met with Leo Palliardi, Jr., a financial advisor from Waddell and Reed. The preparation work with Mr. Palliardi included the development of a single household budget. Defendant's Exhibit BB .
The plaintiff's claim that he told Mr. Palliardi in front of the defendant that he might be divorced soon was refuted by Mr. Palliardi and is not credible in light of the parties' behavior in the years following the meeting. They continued to vacation together, engage in a variety of social activities and to have intimate sexual relations.
Moreover, Mr. Palliardi testified credibly that he would have provided different advice if he had been told the parties might be getting a divorce. The retirement plan Mr. Palliardi recommended assumed the parties were staying together.
The plaintiff has a Thrift Savings Plan currently valued at approximately $138,000. Defendant's Exhibit Z .
The defendant has a Fidelity 401(k) plan with an approximate balance of $289,569, net of a $35,000 loan the defendant took from the plan to pay attorneys fees. Defendant's Exhibit TT . The defendant has been repaying the loan at the rate of $800 per month from marital assets so the outstanding balance is approximately $31,300.
The defendant continued to contribute to her 401(k) plan after the plaintiff filed for divorce.
Each party has a defined benefit plan. The defendant has a defined benefit pension plan with a monthly benefit of $3,540 as of March 23, 2016. Defendant's Exhibit SS . The defendant's interest is fully vested.
The plaintiff has a defined benefit plan currently in pay status. He derives income of $2,791 per month from the plan.
The plaintiff has an earning capacity equal to the Connecticut minimum wage of $10.10 per hour or $404 per forty-hour week. The plaintiff's gross yearly income, including his pension of $33,494, his social security benefits of $2,652 and the imputed income of $21,008 is $57,152, or a gross weekly income of $1,099 per week.
The plaintiff has a First Niagra Bank account, account number ending in 6351, with a balance of $578, a First Niagra Bank checking account, account number ending in 3415, with a balance of $221, an American Eagle Federal Credit Union account, account number ending in 1596, with a balance of $500, and a Minnesota Life Insurance Policy with a current cash value of $4933. Plaintiff's March 10, 2017 Financial Affidavit . The Minnesota Life Insurance Policy includes long-term care coverage. Defendant's Exhibit X .
This bank account is listed on the plaintiff's financial affidavit as a joint account. The defendant does not list it on her financial affidavit at all. The court will treat the account as belonging to the plaintiff.
The defendant has a Dutch Point checking account, account number ending in 0696, with a balance of $2,000, a Dutch Point savings account, account number ending in 8512, with a balance of $500, and a Dutch Point Holiday Club account, account number ending in 5009, with a balance of $400. Defendant's April 17, 2017 Financial Affidavit .
The parties jointly own a Waddell and Reed account, account number ending in 44201, with a current balance of $61,286. They also have a Dutch Point Visa credit card on which they owe $6,796 as of February 17, 2016. Defendant's Exhibit I .
The defendant owns jewelry worth $4,000. The plaintiff owns a coin collection, presently in the defendant's possession, worth $2000.
The defendant lists the coin collection as her asset on her financial affidavit; the plaintiff does not include it as an asset on his financial affidavit. Both parties testified the coin collection belongs to the plaintiff and in her proposed orders the defendant asks that the plaintiff be assigned the coin collection. The court will do so.
The parties own a 2011 Honda Accord worth $10,000 and a 1978 MG worth $1,210, both titled in the plaintiff's name. They also own a 2011 Nissan Rogue worth $10,000, titled jointly. The plaintiff drives the Honda and the MG; the defendant drives the Nissan.
The marital home at 122 Hills Street, East Hartford has a present fair market value of $120,500. Defendant's Exhibit F . It is encumbered by mortgages of approximately $96,000.
The parties own 116 EE U.S. Savings Bonds that they intended to use for their daughters' weddings.
The parties' daughters have substantial education loans. The defendant is a guarantor on Chelsea's $12,000 student loan and Jamie's $68,000 student loan.
The parties have agreed on the division of all of their personal property save a clock that was owned by the plaintiff's deceased brother.
The parties have agreed that their 2016 income tax refund shall be shared equally. The allegations of the complaint are proven and true.
The marriage of the parties has broken down irretrievably.
The plaintiff's single-minded devotion to his sobriety, his obsession with bowling, his infidelity and his deceptions are the primary reasons for the failure of the marriage.
ORDERS
In accordance with the findings enumerated above and in consideration of the various statutory criteria the court employs in entering a judgment of dissolution, the court hereby orders:
The defendant shall pay alimony to the plaintiff in the amount of $125 per week for a period of eighteen months. The purpose of alimony in this instance is to provide support for the plaintiff while he acclimates to his new circumstances, secures appropriate living arrangements, obtains suitable employment and establishes self-sufficiency. " 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." Cooley v. Cooley, 32 Conn.App. 152, 165, 628 A.2d 608, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993). " [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." Kovalsick v. Kovalsick, 125 Conn.App. 265, 271-72, 7 A.3d 924 (2010); see also Bornemann v. Bornemann, 245 Conn. 508, 539, 752 A.2d 978 (1998).
The plaintiff shall pay alimony to the defendant in the amount of $1 per week for a period of eighteen months. The purpose of alimony in this instance is to account for the uncertainty in the defendant's future employment status.
Alimony to a party shall terminate upon the death of either party or that party's remarriage. Alimony to a party shall be modifiable upon that party's cohabitation as described in General Statutes § 46b-86(b). Each party shall immediately notify the other of any change in his or her living arrangements, employment status or the receipt of social security disability benefits. The receipt of disability benefits shall be a basis for modification of the alimony award.
General Statutes § 46b-82 regarding alimony, mirrors § 46b-81(c) with the exception of the last two provisions. Section 46b-82 directs the court when awarding alimony to consider " the award, if any, which the court may make pursuant to section 46b-81 . . ." The court therefore, will apply the statutory criteria to the facts of this case, recognizing that equal weight need not be given to any one factor. See Horey v. Horey, 172 Conn.App. 735, 741 (2017). The court has taken into account the plaintiff's imputed gross income of $404 per week in addition to his income from his pension and social security earnings.
The plaintiff shall quit claim all of his right, title and interest in the marital home located at 122 Hills Street, East Hartford to the defendant by executing the necessary documents and delivering said documents to the defendant within thirty days of this judgment. The cost of preparing and recording said documents to effectuate the transfer of title shall be the sole responsibility of the defendant. The plaintiff shall fully cooperate in effectuating the transfer of title.
The defendant shall remove the plaintiff from the mortgages within one year of the transfer of title, except that the defendant may request, and shall receive, one ninety-day extension upon a showing of a good faith effort to effectuate the removal of the plaintiff's name from the title and the need for some additional time to effectuate that procedure.
The defendant shall indemnify and hold the plaintiff harmless on all expenses and obligations associated with the property after the date of transfer, including, but not limited to, insurance, utilities and the like. The defendant is responsible for any tax liability that accrues after the date of transfer. If taxes are not escrowed from the mortgage payments, the parties shall equally divide any tax liability that accrued before the date of transfer. The defendant shall be entitled to claim all of the 2017 itemized deductions for the marital home. The plaintiff shall vacate the marital home within fourteen days of this judgment.
In the event that the defendant is unable to remove the plaintiff's name from the title in the period set forth in this judgment, she shall place the property for sale no later than sixteen months after this judgment.
The property shall be listed by a realtor chosen by the plaintiff, which realtor shall be directed to aggressively market the property for as quick a sale as is reasonable.
The defendant shall be solely liable for all expenses stemming from the ownership and possession of the property, including but not limited to the mortgage, taxes, insurance, utilities, maintenance and repairs, and she shall indemnify and hold harmless the plaintiff from any liability thereon.
The parties shall evenly divide the Waddell and Reed account. The defendant shall pay the plaintiff $12,250 from her share of the Waddell and Reed account as his share of the equity in the marital home. The plaintiff shall pay the defendant $605 from his share of the Waddell and Reed account as her share of the equity in the MG.
The defendant shall transfer $48,750 to the plaintiff from her Fidelity 401(k) plan by a qualified domestic relations order--if necessary. Said transfer shall be subject to any gains or losses as a result of market fluctuations. The costs for the preparation, review and approval of such order shall be shared equally by the parties. The court shall retain jurisdiction to enter an appropriate qualified domestic relations order as becomes necessary.
This distribution takes into account the disparity in the parties' defined benefit plans. The court declines to make further property distributions of the parties' defined benefit plans.
This division of the parties' retirement accounts is made--in part--in recognition of the use the parties made of marital assets to pay legal fees and the court's allocation of their other assets.
The defendant shall retain her jewelry free and clear of any claim by the plaintiff.
The plaintiff shall retain his coin collection and his brother's clock free and clear of any claim by the defendant.
The court incorporates into this judgment the parties' agreement on the division of the remainder of their personal property. The property so divided shall be held free and clear of any claim by the other party. The plaintiff shall remove his personal property from the marital home within fourteen days of this judgment.
The plaintiff shall retain the Honda Accord and the MG, free and clear of any claim by the defendant. The defendant shall retain the Nissan Rogue, free and clear of any claim by the plaintiff. Each party shall indemnify and hold harmless the other from any financial obligations relating to any vehicle in his or her possession.
The plaintiff shall be responsible for half the Dutch Point Visa credit card debt incurred before February 2016; the defendant shall be responsible for the balance. The parties shall pay their share of the debt within thirty days of this judgment.
The Dutch Point Visa card is listed as a liability on the defendant's financial affidavit but not on the plaintiff's. The February 2, 2016 Visa statement indicates it is a joint account. Plaintiff's Exhibit I . In addition, the plaintiff testified that the Visa card was used for martial debt, therefore the court treats it as so.
Except as specifically provided herein, the parties shall retain the assets listed on their financial affidavits, free from any claim by the other, with the right to change beneficiaries or hypothecate those assets as they may otherwise deem appropriate.
The parties shall fully cooperate in the execution of any and all documents required to effectuate the transfers specified in this judgment. Except as otherwise provided herein, any transfer documents or instruments necessary to effectuate such transfers shall be prepared by counsel of the recipient of said property.
The plaintiff shall be solely liable for all debts and liabilities as listed on his financial affidavit or in his sole name and shall hold the defendant harmless and indemnify her from said debts and liabilities.
The defendant shall be solely liable for all debts and liabilities as listed on her financial affidavit or in her sole name and shall hold the plaintiff harmless and indemnify him from said debts and liabilities.
If in the future there is discovered a debt that, through the parties' mutual mistake, has not been divided pursuant to this judgment and the debt accrued during the term of the marriage or went to the accumulation of marital property, the parties shall share equally in the costs of repayment of the debt, including all principal, interest and penalties. However, if one party incurred the debt, without the other party receiving any benefit, then the party incurring the debt, regardless of who is legally liable under the debt contract, shall be wholly responsible for its payment in full, including all principal, interest and penalties.
The parties shall keep their own bank accounts as listed on their most recent financial affidavits, free and clear of any claim by the other party.
The parties shall retain, free and clear of any claim by the other, their defined benefit plans.
The parties shall be responsible for their own attorneys fees.
The 2016 income tax refund shall be divided equally between the parties. The 116 EE U.S. Savings Bonds shall be divided equally between the parties.
The defendant shall retain, free and clear of any claim by the plaintiff, any interest she has in the Computershare MetLife policy.
Both parties made reference to a compushare account in their financial affidavits. There is no reference to any such account in the exhibits. One exhibit makes reference to a Computershare account. The court will proceed on the basis that the parties intended to make reference to the Computershare account.
The plaintiff shall retain the Minnesota Life Insurance Policy, and its cash value, free and clear of any claim by the defendant.
In her proposed order, the defendant made no claim to the cash value of the Minnesota Life Insurance Policy.
The parties shall be responsible for their own health insurance.
The parties shall exchange copies of any family photographs they have within sixty days of this judgment. The photographs are to be exchanged electronically, if possible.
General Statutes § 46b-81(c) provides the statutory framework for equitable distribution of property. It provides, in relevant part: " In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the . . . dissolution . . . 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 to the acquisition, preservation, or appreciation in value of their respective estates." In reaching this decision regarding property distribution, the court has taken into account all the factors enumerated in § 46b-81(c). The court has divided the parties' marital assets fairly and equitably, albeit not necessarily equally.
The defendant's birth name is restored. Henceforth she shall be known as Lisa Wilson.
Both parties asked the court to retain jurisdiction over the children's student loan debts in the event there is a default by either child. The court declines to do so. The student loan debts are in the nature of educational support. General Statutes § 46b-56c, which permits the court to retain jurisdiction over educational support issues, may not be applied retroactively. Kleinman v. Chapnick, 131 Conn.App. 812, 816-17, 30 A.3d 3 (2011). A party must seek an order for contribution to educational support before the expenses are incurred. " Section 46b-56c contains no language authorizing retroactive application, and various provisions contained therein suggest that it is intended to apply prospectively. See, e.g., General Statutes § 46b-56c(b)(1) (authorizing court to enter educational support order " at the time of entry of a decree of dissolution, legal separation or annulment . . ."); General Statutes § 46b-56c(c)(4) (requiring court to consider reasonableness of higher education " to be funded"); General Statutes § 46b-56c(c)(6) (requiring court to consider evidence of institution of higher education child " would attend"); General Statutes § 46b-56c(e) (setting forth conditions child must comply with " [t]o qualify for payments due under an educational support order)." (Internal quotation marks omitted.) Kleinman v. Chapnick, supra, 816-17. The parties by agreement cannot confer jurisdiction on the court where jurisdiction does not otherwise exist. Warner v. Bicknell, 126 Conn.App. 588, 594, 12 A.3d 1042 (2011) (" [i]t is hornbook law that the parties cannot confer subject matter jurisdiction on a court by consent, waiver, silence or agreement" [internal quotation marks omitted]).
The motion for sanctions and counsel fees (#119) is denied.
JUDGMENT
The court orders the marriage dissolved on the ground of irretrievable breakdown and declares the parties single and unmarried. The foregoing findings are incorporated into the judgment.