Opinion
FA-03-0100766-S
November 6, 2003
MEMORANDUM OF DECISION
This is an action for dissolution of the marriage of the parties. The plaintiff and the defendant, whose maiden name was Elisabeth Igner, were married on May 25, 1985 in Wallingford, Connecticut. They have both lived in Connecticut continuously since the date of the marriage and there has been one child born during the marriage, Christina Rio, born on December 2, 1989. The marriage of the parties has broken down irretrievably and is hereby dissolved.
When the defendant wife met the plaintiff husband in 1981 he was incarcerated in the Cheshire Correctional Institute after having been convicted of killing his first wife. The defendant married the plaintiff after dating him for several years because he was honest with her about his criminal past, she was a very sympathetic person and he was clearly in need of sympathy.
Although the plaintiff now has and had a considerable earning capacity, as described below, the plaintiff worked very little during the period of the marriage, while the defendant went to work regularly, providing the majority of financial support for the family. During the first few years of their marriage, the husband's outrageous and salacious behavior at the family home while the defendant was at work resulted in his arrest and conviction. It is not necessary to describe the husband's conduct in detail here. Suffice it to say that that conduct also resulted in the couple having to move from their first house after only nine months. The husband's deviant conduct also forced the couple to move from their second house.
Not only did the defendant wife have to put up with the husband's aforementioned behavior and its effects on the family, she also had to deal with the consequences of the plaintiff's jealousy and suspicion. When the defendant mentioned a man at her workplace for whom she felt sorry, the plaintiff concluded, without any basis whatsoever, that the defendant must be having an affair with the man. The plaintiff's claim in this lawsuit that the breakdown of the marriage is attributable to the wife's infidelity is based only upon the plaintiff's unreasonable suspicions and not on fact. That claim is not found to be credible.
During the marriage the plaintiff would routinely call and harass the defendant at work. He also called the defendant's employer and advised the employer that the defendant had looked at her own telephone records. This conduct had no purpose whatsoever other than to maliciously harm the defendant. Since the employer, SNET/SBC, had instituted a policy which prohibited employees from accessing any customer's phone records, including their own, without proper authorization, this complaint resulted in the defendant being suspended from her job and almost resulted in her termination.
Over the course of the marriage, the defendant continually asked the plaintiff to get a job, but he worked only sporadically. The plaintiff's lack of a steady job afforded him time to take care of the child, which did help contribute to the support of the family. However, this did not completely make up for the years when the defendant went to what she described as a "horrible job" day in and day out, while the plaintiff enjoyed himself at home.
The defendant also had to endure times when the plaintiff was in a state of severe depression when he would just lie around the house for days. When the defendant would try to sleep, the plaintiff would blast loud music, stating that if he was unable to sleep, he did not want the defendant to get any sleep either.
Based on the foregoing the court finds that the plaintiff husband was at fault for the breakdown of the marriage
An award of child support must be based on the criteria set forth in the Connecticut Child Support Guidelines, Connecticut General Statutes § 46b-215a. Those Guidelines are primarily income based. Therefore, the court must determine the income of the parties prior to an award of child support. It is uncontested that the defendant earns $45,000 annually, or $867 per week.
The plaintiff presented three different financial affidavits, all of which contained substantially different income amounts. The affidavit dated June 4, 2003 shows that the plaintiff has income of $11,000 per year, or $211 per week. This income came solely from the plaintiff's Social Security disability. The court finds that this affidavit was false, since it failed to list income of $300 to $400 per week which the plaintiff has earned working for Russ McDaniel as a carpenter's helper. The plaintiff has worked for Mr. McDaniel since 1993.
The financial affidavit dated October 2, 2003 shows annual income of $24,648, or $473 per week. It includes Social Security income for the plaintiff and Social Security dependent's income for the plaintiff's daughter. It also shows income of $151 per week as a carpenter's helper. This amount is not credible because there was also evidence that the actual average income received by the plaintiff for his carpenter's helper job in the months prior to the trial was $368 per week. The fact that the plaintiff failed to list any carpenter's helper income on his financial affidavit until after the defendant's attorney subpoenaed Mr. McDaniel further diminished the credibility of any assertion made by the plaintiff about his income or earning capacity.
The plaintiff submitted yet another version of his income. He introduced a sworn mortgage application showing his income to be $66,000 per year, or approximately $1,269 per week. This application showed self-employment income, but no Social Security Income.
The court will credit the plaintiff's testimony that he earns $16 per hour as a carpenter's helper, which amounts to $33,280 annually based on a 40 hour workweek. When this amount is added to the plaintiff's Social Security income of $11,000 annually, the plaintiff's total gross income is $852 per week, which the court finds to be the plaintiff's income. As further support of the finding that the plaintiff's income is $852 per week rather than the amounts listed on either of his financial affidavits, the court notes that this amount is approximately the same as the husband's expenses as reflected in his the financial affidavits.
The parties have agreed to a shared custody arrangement, which is a deviation criteria under Connecticut General Statutes § 46b-215a-3(b)(6)(A). Under the parties agreement the minor child will spend an approximately equal amount of time with each parent. Under the Child Support Guidelines there is no need to allocate the total support obligation of $255 because the parties have substantial income parity.
The parties sold their residence in Killingworth and obtained net proceeds from the sale in the approximate amount of $213,750. Each party has retained $83,500, or approximately 40% of those proceeds. The defendant's attorney is currently holding the amount of $49,649 in escrow. That amount is composed of $46,693, the balance of the proceeds from the sale of the house, and $2955.87, an income tax refund. Based on all the relevant statutory criteria, the parties are each entitled to half of the proceeds from the sale of the family residence and half of the tax refund.
Based on the conduct of the husband throughout the marriage, his failure to have a steady job when he had the ability to do so, and his attempts to sabotage his wife's employment, the court does not find that the plaintiff is entitled to half of the wife's pension. However, the husband did contribute to the support of the family by caring for the child during the marriage while the defendant worked. Based on those services, the court finds that the plaintiff is entitled to receive 20% of the wife's pension as of the date of the dissolution. The value of the pension as of February 2003 was $87,600. The wife will retain her defined benefit plan and the parties will equally divide the wife's defined contribution plan, the value of which was $16,190 as February 2003.
The plaintiff is seeking alimony from the defendant. The defendant is not seeking any alimony from the plaintiff. After considering all the factors enumerated in Connecticut General Statutes § 46b-82, including fault for the breakdown of the marriage and earning capacity of the parties, the court finds that the plaintiff is not entitled to alimony from the defendant.
The court has already reviewed the evidence of the plaintiff's fault in the breakdown of the marriage. In addition, the court finds that the plaintiff's earning capacity is at least equal to that of the defendant. This finding is based on the financial affidavits and mortgage application mentioned above, the plaintiff's own statements about the amount of his income, as well as the evidence that the plaintiff was able to act as his own contractor in the construction of the couple's third house in Killingworth. The plaintiff testified that he saved over $90,000 by acting as his own contractor.
The plaintiff points to his Social Security Disability Pension as sole evidence of his earning capacity, or the lack thereof. The Social Security Administration found that the plaintiff had Major Depressive Disorder with psychotic features, Anti-Social Personality Disorder, Degenerative Disc Disease, and Osteoarthritis of the right hip which precluded him from working for at least twelve continuous months.
This court is not bound by the Social Security Administration's finding of disability. Tevolini v. Tevolini, 66 Conn. App. 16, 28, 783 A.2d 1157 (2001). The plaintiff presented no expert testimony as to the nature or extent of the plaintiff's disability. Moreover, there was significant evidence introduced at trial which was inconsistent with a finding that the plaintiff had any disability which prevented him from working. The plaintiff represented to the Social Security Administration that his inability to work commenced in 1993. The veracity of that representation is doubtful in light of the plaintiff's testimony that he had been working for Mr. McDaniel since 1993. He continued working for Mr. McDaniel earning $16 per hour from 1993 until the present.
The plaintiff attempted to offer the testimony of a physician, Paul Torop. Presumably Dr. Torop would have testified as to the extent of the plaintiff's disability. However, the testimony of Dr. Torop was not allowed because the plaintiff failed to disclose him as an expert witness.
After considering the foregoing evidence and all of the factors enumerated in Connecticut General Statutes Sections 46b-56, 46b-81, 46b-82 and 46b-84, the court enters the following orders:
1. The marriage of the parties is hereby dissolved;
2. The parties are awarded shared legal custody and physical custody of the minor child with an equal access schedule;
3. There are no orders of child support between the parties, due to the deviation criteria of shared custody. The parties shall equally divide the minor child's extracurricular, school-related, and clothing expenses. The parties shall equally divide the monthly social security dependent's benefit;
4. The defendant wife shall maintain health insurance for the benefit of the minor child so long as it is available through her employment at a reasonable cost, and the parties shall equally divide any unreimbursed health expenses, including, but not limited to optical, dental, orthodontic, psychological, and co-pays;
5 Each party shall retain the real estate titled in their names;
6. The escrow account and tax check held by defendant wife's counsel shall be equally divided;
7. The parties shall equally divide the defendant wife's 401K account.
8. The plaintiff is awarded 20% of the defendant's SBC pension as of the date of dissolution. This award shall be effectuated by a QDRO, which will be prepared by the defendant's attorney with the parties sharing equally in the legal fees and costs of such preparation. The defendant is awarded 80% of her SBC pension;
9. The defendant wife shall be entitled to claim the minor child as a tax exemption;
10. The fees owed to Attorney George Law, attorney for the minor child, shall be paid equally by the parties, with one half of Attorney Law's fees being paid from the escrow share of each party, which escrow is being held by defendant wife's counsel.
BY THE-COURT,
AURIGEMMA JUDGE.