Opinion
No. FA 01-034 22 60 S
April 23, 2003
MEMORANDUM OF DECISION
This is an action for dissolution of marriage and other relief brought to the judicial district of Danbury. Both the plaintiff and defendant appeared through counsel. The plaintiff proceeded on his complaint, dated March 26, 2001. The matter was heard by the court on March 5, 6, 7, 14, 20, 2003. The court makes the following findings and orders.
The plaintiff and defendant were married on April 16, 1989 in Yorktown, New York. The plaintiff has resided in the state of Connecticut for at least twelve months prior to bringing this action. There has been one minor child born issue of the marriage; namely, Rachel Allisson Simons, born January 26, 1992. No other children have been born to the parties since the date of the marriage and the defendant is not currently pregnant. Neither the plaintiff, the defendant nor the minor child have been the recipients of state or local assistance.
The plaintiff is fifty years old, born July 21, 1952, and is in good health. The plaintiff obtained a bachelor of arts degree from Michigan State University in 1974. He has taken some additional classes provided by his current employer, IBM, but no further degree has been obtained.
The plaintiff has been employed by IBM since January 1, 1999 in the service support department. He is a hardware repairman servicing PCs, laptops and printers. The plaintiff had previously worked for a wholly owned subsidiary of IBM in essentially the same capacity.
The plaintiff's W-2 earnings over the past few years indicate the following: Tax year 2000 — $34,912.27; Tax year 2001 — $38,987.21; Tax year 2002 — $37,929.23. IBM provides the plaintiff with the following benefits: savings plan matching; pension; life insurance (2 X salary); medical and dental insurance; vacation and personal time.
The plaintiff's IBM savings plan, as of December 31, 2002, has an approximate value of $52,212.04. The plaintiff's IBM personal pension account, as of January 31, 2003, has an approximate value of $9,150.64. The plaintiff has an average gross weekly income of $824 and a net weekly income of approximately $606.21.
The plaintiff came into this marriage with little or no assets and has accumulated in his name only, excluding the marital residence, less than $100,000 during the course of this marriage.
The plaintiff did inherit money during the course of the marriage. In 1996, the plaintiff inherited $8,529.61 from Lavonda Simons. This money was deposited into the parties' joint account and used to purchase an automobile which the defendant operated. Also, in late January, early February of 2000, the plaintiff received $1,900, inherited from his father's pension.
The defendant is forty-eight years old, born September 28, 1954, and is in good health. She earned a bachelor of arts degree in English from Rutgers University and a master's in business administration from Sacred Heart University in the late 1980s. The defendant was employed by IBM from April 30, 1995 through June 24, 2002, at which time she was laid off. The defendant's last position with IBM was public relations and special events manager. The defendant was earning $116,000 per year at the time of her departure from IBM. She received a severance package from IBM which was the equivalent of six months of compensation or otherwise the gross amount of $58,278.21. IBM also contributed up to $2,500 toward defendant's tuition at Norwalk Community College, where the defendant is pursuing a degree in hospitality management. The defendant's W-2 for 2002 shows income of $118,364.97; for 2001, income of $110,943.44; and for 2000, income of $109,163.
The defendant is currently employed by Kent Golf Club, LLC, the holding company for Bulls Bridge Golf Club, LLC, in Greenwich, Connecticut, as the office manager and executive assistant. The defendant started working full-time at this position on January 13, 2003. The defendant works as an independent contractor and not a W-2 employee.
The defendant's testimony regarding her compensation was confusing, at best. At first, she testified that she was paid a salary of $45,000. That testimony was later changed to indicate her base salary was $40,000. That testimony was again changed to indicate that she only got paid when she worked.
The defendant's affidavit submitted in connection with this action showed a gross weekly wage of $1,008 as well as gross weekly dividend and interest income of $239. After all applicable deductions, the defendant's net weekly wage is $996. The only benefit that the defendant's current employer provides her with is reimbursement for the cost of her COBRA medical insurance premiums.
Unlike the plaintiff, the defendant came into this marriage with significant premarital assets. The court finds the following assets to have been owned by the defendant prior to the marriage, and the approximate value of the asset near the time of marriage:
Fidelity account $40,030.18
IBM 401K $12,643.66
Stocks $16,724.45
IBM pension $15,000.00
IBM stock $16,708.00
Fleet IRA $15,937.00
IBM credit union $11,069.00 ----------
Total $128,122.29
Additionally, the defendant owned a condominium in Yorktown Heights, New York. The defendant purchased the condominium in 1988 for $174,900. The original mortgage amount was $87,500. The defendant sold the condominium in 1993 for $143,000. The defendant's testimony was confusing as to the amount of money she actually netted from this transaction. The court finds the defendant netted approximately $85,900 from the purchase and sale of this real estate.
The defendant argues that these assets, at least the value as of the date of the marriage, should be her exclusive property. The court disagrees and considers the assets owned by the parties at the time of marriage to be subject to the court's consideration and possible distribution.
"C.G.S. § 46b-81, unlike the property distribution statutes in several other states, does not limit the distribution powers of the court to property acquired during the marriage. While the court does not have the power to divide property acquired after the marriage has been dissolved, the statutory criteria to be considered in arriving at a property distribution is generally considered to authorize the court to take into account the assets which each party brought to the marriage . . . While the nature and extent of any assets owned prior to the marriage is clearly relevant, nothing in the statute itself or the judicial decisions contain any indication that a spouse has an absolute entitlement to retain assets he or she owned prior to the marriage." Connecticut Practice Series, Vol. 7, § 26.17, pg. 494. "While the court has discretion to allow or to disallow one spouse to share in the assets acquired by the other after separation; Papageorge v. Papageorge, 12 Conn. App. 596, 600, 533 A.2d 229 (1987); a court is not prohibited from awarding one spouse a share in the other's assets no matter when acquired . . ." Roach v. Roach, 20 Conn. App. 500, 508 (1990).
The plaintiff and defendant met in 1988 and began living together in November 1988. The parties were married shortly thereafter in April 1989. The parties resided in the defendant's condominium in Yorktown, New York until they purchased the marital residence in Ridgefield, Connecticut in 1993.
The plaintiff and defendant purchased the marital residence in Ridgefield, Connecticut on October 29, 1993. The defendant put down $130,000 toward the purchase of this property. The $130,000 came from an inheritance the defendant received from her aunt in January of 1990. These moneys were originally deposited in a Sanford C. Bernstein Company, Inc. account. The defendant later transferred these funds to her Fidelity Investments account. From this account, the defendant paid the deposit on the marital residence, as well as the associated closing costs. There was no evidence that the plaintiff contributed anything toward the purchase of the marital residence.
The parties stipulated that the fair market value of the marital residence as of February 21, 2003 is $660,000. Despite this, the defendant argues that the property should be valued as of the date the parties separated, October 2000. The court disagrees. "In the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property." (Internal quotation marks omitted.) Sunbury v. Sunbury, 216 Conn. 673, 676 (1990). See also Kinderman v. Kinderman, 19 Conn. App. 534 (1989). Simply put, "assets are valued as of the date of dissolution, rather than as of the date of an earlier separation." Roach v. Roach, 20 Conn. App. 500, 508 (1990).
The balance of the mortgage secured by the marital residence at the time of trial is $38,088, which leaves an approximate net equity in the property of $621,912 The evidence is undisputed that between the years of 1993 to the time of trial, the defendant made additional principal payments toward the mortgage. The funds paid, totaling approximately $97,000, came from the defendant's sole accounts. The court readily acknowledges that these payments substantially reduce the parties' joint debt, while, simultaneously, increase the net value of the marital estate. The defendant argues that this $97,000 should be, in essence, set aside for the defendant's sole benefit, and not be subject to distribution amongst the parties, since the defendant made the payments and the source of funds came from accounts in the defendant's name only. This court disagrees. If, hypothetically, the defendant put $1,000 per month aside in a bank account for seven years, as opposed to $1,000 per month for seven years, toward reducing a debt, the net result would be the same. Both are examples of accumulated assets during the course of a marriage and thus subject to the court's jurisdiction to distribute amongst the parties. That the subject monetary accumulation is in the form of increased equity in real estate as opposed to an increased balance in a bank account only alters the nature of the asset, but doesn't alter the fact that it is indeed a marital asset and clearly subject to the court's equitable powers to distribute.
It was the plaintiff's testimony that after the parties' daughter was born in 1992, the marriage began to break down. In 1996/97, the parties were sleeping in separate bedrooms. This practice continued until the plaintiff left the marital residence on October 29, 2000. The plaintiff testified that for the two years prior to his departure from the marital residence, the situation was very "tense." The plaintiff recalls the first serious discussion regarding separation was in January/February of 2000, when the parties had a heated disagreement over the plaintiff's receipt of the $1,900 inheritance. The plaintiff would attribute the cause of the breakdown of this marriage to the defendant's extramarital affair with Robert Denley. Although the court has no reason to doubt the plaintiff's testimony that he was "devastated" after learning of this affair, it would appear that the timing of this extramarital relationship came after this marriage was already in serious disrepair. The court will not attribute fault in the breakdown of this marriage to either party, but does find that the marriage has broken down irretrievably with no hope of reconciliation.
There was considerable testimony, evidence and argument over the defendant's position as beneficiary of various family trusts. The plaintiff attempted to introduce into evidence three different trusts. It was not disputed that the defendant is a beneficiary under all three trusts. The subject trusts are identified as follows:
(1) The Edith Gruenwold Trust;
(2) The Sylvia Minoff Trust; and
(3) The Charles Minoff Trust.
The threshold issue before the court at the time of trial was whether evidence of these trusts should be admissible at trial. The court heard argument as to defendant's motion in limine, dated February 27, 2003, and plaintiff's objection thereto. The court granted defendant's motion as to the Charles Minoff Trust, which was a revocable trust, but denied the defendant's motion in limine as to the Edith Gruenwold Trust and the Sylvia Minoff Trust.
The issue now before the court is whether defendant's interest in the above-referenced trusts should be considered as part of the marital estate and thus subject to distribution. Based upon the testimony of the witnesses, summarized in the findings set forth below, the court finds that the defendant's interest in the subject trusts is definite, certain and actuarially ascertainable. The defendant's interest in these trusts is property subject to the court's discretion to distribute.
Allan Minoff, the brother of the defendant, is the trustee of the Edith Gruenwold Trust. Mr. Minoff testified that Edith Gruenwold died in 1989. As trustee, Mr. Minoff is vested with the power to manage the trust funds and to distribute to Charles Minoff, the defendant's father, who is living and ninety-two years of age, money at the trustee's sole discretion. It is certain that upon Charles Minoff's death, the defendant and her two siblings, Alan Minoff and Judy Minoff, will each receive one-third of whatever is remaining in the corpus of the trust.
Mr. Minoff testified that after Edith Gruenwold's death and pursuant to the terms of the trust, one-half of the corpus of the trust was distributed in thirds to the defendant, Alan Minoff and Judy Minoff. The defendant received approximately $132,093.
Mr. Alan Minoff keeps an accounting of the assets of the trust. Plaintiff's Exhibit FFFF, a computer printout generated by Alan Minoff on March 4, 2003 and produced by Alan Minoff at the time of trial, indicates the trust assets total $385,144.
Alan Minoff testified that Judith Minoff has received two loans from the Edith Gruenwold Trust. The first loan was in 1993 for $20,000. This loan has been paid in full. The second loan was taken out in 2000/2001 for $25,000. The loan is memorialized by an interest bearing note. This loan has not been paid and the current balance owed is $28,990. Neither the defendant nor Mr. Minoff have ever received a loan from the Edith Gruenwold Trust.
Attorney Richard S. Land performed an actuarial analysis and evaluation of the value of defendant's present interest in the Edith Gruenwold Trust. Attorney Land was admitted to the Bar in 1975 and is currently licensed to practice in the state of Connecticut and New York. He is a member of the firm of Chipman, Mazzuco, Land Pennarola. The focus of his practice is on estate planning, estate settlement and trust administration. He regularly holds seminars on these areas of the law for various Bar Associations and corporate clients, such as American Express.
The court finds the testimony of Attorney Land to be credible, reliable and persuasive.
Attorney Land testified that the present value of the Edith Gruenwold Trust is $333,824. He further testified that the current value of defendant's interest in the trust is $111,565. The court agrees with this testimony.
Mr. Alan Minoff is also the trustee of the Sylvia Minoff Trust and essentially vested with the same rights and responsibilities as trustee of this trust as he is of the Edith Gruenwold Trust. Sylvia Minoff is deceased. Similar to the Edith Gruenwold Trust, upon the death of Charles Minoff, the defendant and her two siblings, Alan Minoff and Judy Minoff, will each receive one-third of whatever is remaining in the corpus of the trust.
Mr. Minoff also keeps an accounting of the assets of this trust. Plaintiff's Exhibit GGGG, a computer printout generated by Mr. Minoff on March 4, 2003 and produced by Mr. Minoff at the time of trial, indicates that the trust assets total $582,356.
Attorney Richard S. Land also performed an actuarial analysis of the value of the defendant's present interest in the Sylvia Minoff Trust. Attorney Land testified that the present value of the trust is $506,073.19. He further testified that the current value of the defendant's interest in this trust is $168,691.06. The court agrees with this testimony.
The testimony was consistent that the parties shared evenly in the household and childcare responsibilities, although both agreed that the plaintiff did the majority of the cooking. Despite the parties' dispute over the finances, the parties, to their credit, have been able to work out a parenting schedule that meets their daughter's needs. The parties' written agreement regarding the care and custody of their minor child, dated March 14, 2003, was reviewed and approved by the court. That stipulation is incorporated by reference into this judgment. The parties essentially agree on child support, subject to the court's review. Although both parties agree that their daughter is college bound, they disagree over the financing of that education.
With the exception of one checking account, of which only the plaintiff made deposits, the parties essentially kept their assets separate during the marriage. The only joint account the parties held had a balance of about $6,000 at the time of separation. The plaintiff took about $4,000 from this account and used the money to set up his apartment.
The parties filed separate returns for 2001. The plaintiff owed $599 in federal taxes and $132 in New York state taxes. The defendant received a federal refund of $21,324 and a state refund of $3,819.
Both parties have vested pensions through IBM, although their values differ significantly. The evidence and testimony regarding the plaintiff's IBM personal pension establishes the value to be $9,150 as of June 31, 2003.
Mr. Barry Kaplan testified as an expert witness regarding the present value of the defendant's IBM pension. Mr. Kaplan is a pension actuary with several years of experience. He has a B.S. degree in actuarial science and has been licensed as an actuary since 1979. The court finds the testimony and evidence offered by Mr. Barry Kaplan to be reliable and persuasive.
The present value of the defendant's pension varies, depending upon the defendant's age when payment commences and whether the defendant elects to take the total benefit as a life annuity or whether a small portion of the benefit is taken as a lump sum and the remainder taken as a life annuity. The court finds the present value of the defendant's IBM pension as set forth in Plaintiff's Exhibit C, and also agrees with the coverture fraction .767, reflecting that portion of defendant's pension which was accumulated during the marriage.
In addition to the pension, the defendant possesses several other assets. A significant portion of these assets, including the defendant's one-half interest in the marital residence, were transferred by the defendant into the Andrea R. Minoff Revocable Trust, a trust created by the defendant in 1999 for her own purposes, unbeknownst to the plaintiff.
The defendant holds the following assets in her name only or in trust. With the exception of the value of the defendant's premarital estate, all of these assets listed below were acquired during the marriage:
Fleet Savings $ 8,916
U.S. Alliance 7,211
New Milford Bank 16,900
Miscellaneous stocks 43,111
Vanguard IRAs 6,526
Fidelity TRAs 3,354
Fleet IRAs 32,921
IBM tax deferred savings 237,936
Vanguard Life Strategy 172,199
Vanguard Life 201,458 -------- $730,521
This total excludes the defendant's pension, defendant's interest in the Edith Gruenwold Trust and the Sylvia Minoff Trust and the marital residence, but includes the defendant's premarital interests. Excluding the value of the defendant's premarital estate, the court finds the defendant has accumulated during the marriage, with the exception of the increase in the value of the defendant's IBM pension, $516,498.71. Clearly, the defendant has demonstrated a far better ability to accumulate assets than the plaintiff.
Adding together the defendant's assets listed above, including premarital interest, the two trust interests, and an average current value of the defendant's IBM pension, the defendant's estate in her name alone, excluding the value of the marital residence, totals approximately $1,257.287. If one then adds in half of the defendant's interest in the equity in the marital residence, the total increases to $1,568,243.
This court has considered the provisions of § 46b-82 regarding alimony, § 46b-81 (c) regarding property division, § 46b-84 regarding child support and the guidelines, § 46b-62 regarding attorneys fees, and Public Act No. 02-128 regarding post-majority payment of college expenses. The court enters the following orders:
ORDERS A. BY WAY OF DISSOLUTION
1. The marriage between the parties is dissolved and each party is declared single and unmarried
B. BY WAY OF PROPERTY DISTRIBUTION
1. Each party is awarded the assets as designated below:
PLAINTIFF DEFENDANT
1) Plaintiff's IBM 401k $ 52,212.00
2) Plaintiff's Prodigy Communications Corporation 401k 27,981.00
3) Plaintiff's Fleet Checking 1,933.00
4) Plaintiff's Vanguard IRA 3,337.00
5) Plaintiff's IBM Pension Acct. 9,151.00
6) Defendant's IBM TDSP 118,968.00 (50) $118,968.00 (50)fn_
It is the court's order that these accounts be divided 50%/50% as of the date of dissolution.
7) Defendant's Vanguard Life Strategy 86,099.50 (50)fn_ 86,099.50 (50)fn_
8) Defendant's Vanguard Life 201,458.00
9) Defendant's Fleet IRAs 32,921.00
10) Defendant's Fleet Accounts 8,916.00
11) Defendant's US Alliance CU 7,211.00
12) Defendant's NewMil Bank 16,900.00
13) Defendant's Vanguard IRAs 6,526.00
14) Defendant's Fidelity IRAs 3,354.00
15) Defendant's misc. stocks 80,092.00 ----------- ----------- $534,060.50 $328,066.50
2. The defendant shall be exclusively entitled to any benefit she may receive from the Edith Gruenwold Trust and the Sylvia Minoff Trust.
3. The plaintiff is awarded the 1998 Mercury Villager and the defendant is awarded the 2000 Subaru Outback.
4. The plaintiff shall transfer by quitclaim deed to the defendant all his right, title and interest in and to the marital residence. Simultaneously therewith, the defendant shall execute a promissory note which has the plaintiff as payee in the amount of $100,000 interest free for three years and thereafter interest at the rate of 5 percent per annum until paid in full. Said note shall be secured by a second mortgage on the marital residence which shall only be behind the first mortgage with the subordination rights to allow the defendant to refinance the first mortgage in an amount no greater than $75,000. The note would be due and payable in full upon whichever of the following events shall first occur and shall provide that the defendant shall pay the plaintiff reasonable attorneys fees and costs in connection with any defaults by the defendant in connection with the terms and conditions thereof:
(1) Death of the defendant;
(2) Sale of the marital residence;
(3) The defendant no longer resides at the marital residence as her primary residence;
(4) The remarriage of the defendant; or
(5) Five years from the date of judgment dissolving the marriage.
The defendant shall be exclusively responsible for the payment of all expenses associated with the marital residence, and hold the plaintiff harmless thereon.
5. One-half of the defendant's interest as participant in the IBM Retirement Pension Plan accrued from the date of marriage to the date of dissolution shall be assigned to the plaintiff as alternate payee. The parties shall fully cooperate in the preparation and placement of the QDRO to effectuate the court's order. The QDRO shall include survivor annuity benefits. Each party shall pay 50 percent of the costs for the preparation and placement of the QDRO. The court shall retain jurisdiction over the QDRO until it is approved by the pension plan administrator.
6. The parties have essentially divided all personal property to their mutual satisfaction. The plaintiff and defendant shall cooperate in dividing between themselves some remaining jointly held personal effects, including family photographs.
C. BY WAY OF ALIMONY
1. The defendant shall pay to the plaintiff periodic alimony in the amount of $1.00 per year until whichever of the following events shall first occur:
(a) The death of either party;
(b) The plaintiff's remarriage or cohabitation;
(c) Seven years after the date of the entry of the judgment of the parties. Said alimony is non-modifiable as to term.
D. AS TO CUSTODY, VISITATION AND CHILD SUPPORT
1. As to custody and visitation, the court incorporates in its orders the parties' stipulation, dated March 14, 2003, attached hereto.
2. As for child support, the plaintiff shall pay to the defendant the sum of $100 per week until the child reaches the age of eighteen, or if still in school, then until the child reaches the age of nineteen or graduates high school, whichever event first occurs. There shall be a contingent wage withholding.
3. The plaintiff shall provide medical insurance for the benefit of the minor child, so long as the same is available to the plaintiff through his employment at reasonable cost. If said insurance is not available to the plaintiff through employment at reasonable cost and the defendant has such coverage available through her employment at reasonable cost, then the defendant shall provide such coverage. If neither party has such insurance, then they shall reach a mutual agreement regarding the procurement and payment of such insurance.
4. The plaintiff shall pay 35 percent and the defendant 65 percent of any unreimbursed medical expenses, including dental, optical, psychological, psychiatric and orthodontic expenses. The defendant will pay the first $100 per year of said unreimbursed expenses.
5. The plaintiff shall provide life insurance for the benefit of the minor child in the minimum amount of $72,000, naming the minor child as irrevocable beneficiary, so long as the plaintiff has a duty to provide support pursuant to C.G.S. § 46b-84 and Public Act No. 02-128.
E. AS TO EDUCATIONAL SUPPORT
1. Pursuant to Public Act No. 02-128, the court retains jurisdiction over the issue of post high school educational support for the minor child.
F. AS TO DEBTS
1. Each party shall be responsible for the debts as listed on their respective financial affidavits and hold the other harmless thereon.
G. AS TO ATTORNEYS FEES
1. The defendant shall pay to the plaintiff the sum of $10,000 toward his legal fees and expenses.
Bozzuto, J.