Opinion
No. FA-03-0127840
January 20, 2005
MEMORANDUM OF DECISION
This dissolution of marriage action seeks the termination of the parties' three-year marriage. The action was commenced by complaint dated July 10, 2003 and a cross complaint was filed July 11, 2003.
The parties, represented by counsel, appeared at trial on September 17, 23, and October 1, 2004. The court heard evidence from the parties and one other witness and received into evidence a total of twenty-seven exhibits offered by the plaintiff and the defendant. The defendant requested an opportunity to file a trial memorandum, which request was granted by the court. The plaintiff also filed a trial brief. The parties provided to the court documentation prepared by a certified public accountant which sets forth the stipulated values of the three parcels of real estate, and credits and adjustments as to the parties' contribution to the properties therein. All of the evidence was considered by the court, as were the provision of General Statutes §§ 46b-62, 46b-81 and 46b-82.
The couple met in 1999 while the plaintiff was working at a bank and the defendant called the bank to inquire about financing. The parties married September 9, 2000. This is the plaintiff's first marriage, who has no children, while this is the third marriage for the defendant, who has two grown children from his previous marriages. Although a relatively short-term marriage, the parties did extensive commingling of assets by refinancing and mortgaging properties owned prior to the marriage and acquiring one piece of real estate during the marriage.
The plaintiff, who is thirty-nine years old, is currently a loan officer with Washington Mutual. When the couple married she was a customer service representative for Liberty Bank. She changed her position in May 2002, from customer service to loan origination, which gave her a weekly salary and paid her commissions on loans she wrote and closed. She then decided to take a job at Washington Mutual as a mortgage account officer with the hope that she would have more secure employment. She currently has a guaranteed salary of $18,000 plus a commission for each loan she closes, representing twenty-five basis points for each mortgage loan that is finalized. Her financial affidavit reflects a yearly salary of $27,820; however, this is based upon her salary from January 1, 2004 to the date of trial. Although there is always a fluctuation in the real estate market which would impact her employment, the court has no doubt that she can earn more than the salary reflected on her financial affidavit based upon her previous employment, her testimony regarding loans she has written and is waiting to finalize, as well as the court's observation that she is both capable and energetic. Unfortunately, the plaintiff has undergone major surgery which may have prevented her from working to her full capacity as a mortgage account officer. She may require some financial assistance in order for her to adequately reach and maximize her full earning capacity.
The defendant is forty-five years old and has been employed by Pfizer Corporation for twenty-three years and has progressed in the company. Having only a high school degree, he has shared in the growth of the Pfizer Corporation and his current salary is $72,800 per year. He enjoys Pfizer's excellent benefits program and has a substantial amount of assets in the form of retirement plans, stock options, etc. He has done quite well for himself.
When the couple married, the defendant had a substantial portfolio of assets totaling over a half million dollars, excluding the real estate he owned. Despite the fluctuation in the stock market, as of June 30, 2004, his portfolio is just shy of that figure. At the time of the marriage he owned a condominium, 103 Spyglass Circle, Groton, which had a fair market value of $139,500, and his equity was $28,500. As of May 1, 2004, the fair market value of the property was $185,000.
The plaintiff, on the other hand, had little in the way of assets at the time of the marriage, excluding the real estate she owned. She owned property known as 41-43 Judson Avenue, Mystic, which at the time of the marriage had a fair market value of $142,000, with equity in the amount of $29,000. The parties did renovations to the interior of the property and it was their marital home from 2000-2003. The property currently has a fair market value of $260,000 with a net equity, accounting only for the mortgage, of $98,000.
The defendant had advanced $29,878 prior to the marriage to this property.
The value of $260,000 is merely an estimate provided by the defendant to the accountant. (Defendant's Exhibit F).
Although the evidence was presented in a complicated and conflicting manner, the undisputed facts are the plaintiff came into the marriage with property at 41-43 Judson Avenue, Mystic and the defendant came into the marriage with property at 104 Spyglass, Groton. During the course of the marriage, they jointly purchased property in Stonington for $193,000 and although the defendant supplied $26,000 in acquisition cost towards the refinance of the plaintiff's property during the marriage, he received almost $37,000 from the refinance of the plaintiff's Judson property according to Exhibit F. He apparently contributed $29,000 toward the Judson property prior to the marriage according to Defendant's Exhibit F, but no testimony was presented at trial as to why or where this money was used or where it came from.
It is also undisputed that the defendant had the bulk of his retirement prior to the marriage, but that during the marriage, he accumulated $42,806 in an IRA Vanguard fund. The court notes that his financial affidavit shows his Pfizer pension listed as "value to be determined" while Exhibit G, prepared with his cooperation and under the direction of his attorney, lists the value at $111,000. His financial affidavit also fails to list his IRA Dreyfus in the amount of $11,928 as well as his Pfizer unexercised stock option with a current value of $31,712. (Defendant's Exhibit G). His lack of candor as it related to his financial affidavit is disconcerting to the court. "Our cases have uniformly emphasized the need for full and frank disclosure in [the financial] affidavit. A court is entitled to rely upon the truth and accuracy of sworn statements . . . and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding." Billington v. Billington, 220 Conn. 212, 219-20, 595 A.2d 1377 (1991) (internal quotations omitted).
The plaintiff attributes the breakdown of the marriage to the defendant's extramarital affair as well as disagreements over the finances during the marriage. In the spring of June 2003, the defendant began to come home late in the night or the next day and the couple stopped communicating with each other. Under repeated questioning by the plaintiff, the defendant denied having an affair, but stated that he was out with friends. He agreed to attend marriage counseling, and even under questioning by the counselor, he flatly denied having any affair. It was only when he was confronted with cell phone records that he finally told the truth. He continued his extramarital relationship throughout the pendency of this action, buying his paramour gifts and going on vacations, and although he claimed on the second day of trial that the relationship was over, after the first day of trial he went on a four-day vacation with her to Martha's Vineyard. This was clearly not a "one-night stand" as the defendant claimed. (Defendant's Trial Memorandum, p. 1.)
The defendant attributes the breakdown of the marriage to the plaintiff's alcohol problem, her relationship with his daughter, and finances. First, although the plaintiff did admit to being drunk on six occasions during the marriage, the court, realizing that some people with a drinking problem refuse to make that acknowledgment, can hardly find that this was a contributing factor to the causes of the marriage failure. There was no evidence presented to indicate that during these periods of intoxication she acted in a manner that was intolerable, unacceptable or embarrassing.
The parties did experience the normal problems associated with a "blended" family. Although the defendant's children from his previous marriages are of adult age, there was a strain in the parties' marriage because of the triangle created by the plaintiff, the defendant and by Rebecca, the defendant's daughter. Within a year of their marriage, at the plaintiff's suggestion, they attended marriage counseling in order to deal with this issue. Prior to the marriage, Rebecca, who now attends college, usually spent half of her time when not in school with her father; however, it is the defendant's claim that after the marriage she spent less and less time with him at his home with the plaintiff and more time with her mother and her friends. He claims that since the separation of the parties, she is again spending more time with him. The plaintiff shed some light on this situation when she described the underage drinking party that Rebecca had at their home which caused the plaintiff to set rules and boundaries for Rebecca as it related to her spending time at their home. Clearly there was tension between the plaintiff and Rebecca, probably due to the defendant's parental loyalty and his inability to confront the situation. Of importance is the fact that the plaintiff agreed to be an obligor on a loan, $22,000 of which was borrowed in order to finance Rebecca's college education. The loan was paid back from the joint account with the plaintiff's agreement.
The defendant also believed he was being "pushed" into the "real estate mogul" mode by the plaintiff and no doubt felt financially uncomfortable. There were a number of refinances, the purchase of the Dennison property in Mystic, the rental of Spyglass as well as Judson, and the almost purchase of another property. It was probably the plaintiff who put all of these transactions together due to her experience as a mortgage broker and banker. The court accepts the plaintiff's claim that she did all the finance arrangements, as well as manage the rental properties, arrange for renovations and repairs, collection of rents, and payment of bills. In examining the defendant's portfolio, it would appear that he is more conservative in his approach to investments although he did not mind profiting from the plaintiff's financial and real estate acumen and indeed now seeks sole title to the property which they purchased together as a venture.
The defendant's proclivity to be less than candid during the marriage continued throughout the trial to the extent that the court did not find him credible. The court disagrees with the assessment made by the defendant's counsel in his trial brief — "[o]f what moment is it that Mr. Somers sought to parse some of his responses in a Clintonesque fashion?" (Defendant's Trial Memorandum, p. 4) This case was conducted in a way in which the defendant lied to the accountant hired to do the financial analysis, lied to the plaintiff's counsel during a deposition taken during the case, and filed a financial affidavit which was not complete or accurate. The court further finds that the attorneys fees incurred by the plaintiff are fair and reasonable under the circumstances; that the size of the fees are in large part due to the defendant's lack of candor resulting in the contentiousness of the case, the necessity of a three-day contempt hearing which was held in August 2003 (Devlin, J.), and are unnecessarily large due to the way he conducted the litigation in order to protect his ego and his estate. To require the plaintiff to pay these fees entirely from her portion of her assets awarded to her by virtue of this Memorandum would undermine the purpose of the same, and the defendant has a greater ability to pay a portion of those fees. Further, the court has considered their respective financial ability and the criteria set forth in General Statutes § 46b-82. General Statutes § 46b-62; Bornemann v. Bornemann, 245 Conn. 508, 752 A.2d 978 (1998). See, Jewett v. Jewett, 265 Conn. 669, 694, 830 A.2d 193 (2003).
Perjury counts. See, Arkansas Supreme Court Committee on Professional Conduct v. William Jefferson Clinton, 2001 WL 34355768 (Ark. Cir.); In re Discipline of Clinton, 534 U.S. 806 (2001). The court also disagrees with the statement in the Defendant's Trial Memorandum: "With less than a three-day window into a three-year marriage it is difficult to discern the absolute truth. That task is made all the more difficult when for strategic purposes or to protect one's ego or one's estate both parties are inclined and both lawyers are obliged to present "their" truth to their greatest advantage." (Defendant's Trial Brief, P 14.) (Emphasis added.) See, Rules of Professional Conduct 3.3.
The court makes the following findings and enters the following orders:
1. The court has jurisdiction and the matter has been pending for 90 days. The allegations of the complaint are proven and true. The marriage of the parties has broken down irretrievably, and the court finds that although both parties contributed to said breakdown, the credible evidence indicates that the defendant was more to blame for that breakdown and the proximate cause of the breakdown of the marriage was the defendant's marital infidelity. A decree of dissolution may enter.
2. The plaintiff shall retain her interest in 41-43 Judson Avenue, Mystic, Connecticut, and shall pay the mortgage, taxes, and insurance on said property, holding the defendant harmless thereon. She shall refinance said property within one year of the date of this order in order to remove his name from the mortgage.
3. The defendant shall retain his interest in 103 Spyglass Circle, Groton, Connecticut, and shall pay the mortgage, taxes and insurance on said property, holding the plaintiff harmless thereon. He shall refinance said property within one year of the date of this order in order to remove her name from the mortgage.
4. The court orders the property at 68 Dennison Avenue, Mystic, Connecticut, to be sold. The parties shall list same for sale no later than February 15, 2005, with a mutually acceptable broker who is a member of the Multiple Listing Service or other similar organization, familiar with real estate values in Southeastern Connecticut area, at a mutually agreed upon listing price. If the parties are unable to agree upon a listing price, each shall choose a broker who, in turn, shall pick a third broker, and the listing price shall be the average of all three brokers. If the parties cannot agree on a broker, the president of the Board of Realtors covering Mystic, Connecticut, shall be the listing broker. Unless the parties shall otherwise agree, they shall accept any bona fide offer without unusual conditions, which is within five percent of the listing price. Upon sale of the property, from the proceeds shall be paid the customary and ordinary costs associated with a sale of real estate, including broker and attorney fees, conveyance taxes, and the existing mortgages and liens. After the payment of these sums, the net proceeds shall be divided 50 percent to the plaintiff and 50 percent to the defendant. From the proceeds to the defendant, the court orders him to pay the following:
a. $1,500 to the plaintiff representing reimbursement for lawn maintenance for the Judson Avenue property.
b. $700 to the plaintiff representing reimbursement for maintenance for the Dennison Avenue property
c. $1,800 to the plaintiff representing reimbursement for one-half of the property taxes due for the Grand List of 2002
d. $15,000 in attorneys fees to the plaintiff's counsel
e. Any after accruing mortgages or liens shall be satisfied by the party incurring it.
Until such time as the property is sold, the parties shall share equally the cost of the mortgage, taxes, and insurance, as well as the costs of maintenance, repairs and replacements. Either party may advance the full cost of the same and an adjustment shall be made at the time of the sale. Any amounts collected as rental payments shall offset these costs until time of sale. Any profits shall be equally shared and all deductions for income tax purposes shall be shared.
5. Based upon the statutory factors, including the ages of the parties, their education, earnings, as well as the length of the marriage, health, the plaintiff's recovery from surgery and other medical issues, the causes for the breakdown of the marriage, retirement assets and work experience, a time limited award of alimony is appropriate. Ippolito v. Ippolito, 28 Conn.App. 745, cert. denied, 224 Conn. 905 (1992); Milbauer v. Milbauer, 54 Conn.App. 304, 312-15 (1999). Commencing one week from the date of this order, and weekly thereafter, the defendant shall pay to the plaintiff the sum of five hundred ($500) dollars as and for periodic alimony, until the closing on the sale of the property located at 68 Dennison Avenue, Stonington, Connecticut, and payment to the plaintiff of her share of the proceeds. Thereafter, the defendant shall pay to the plaintiff weekly the sum of three hundred fifty ($350) dollars until the death of either party, the remarriage of the plaintiff, cohabitation with a third party as set forth in General Statutes § 46b-86(b) or December 31, 2007, whichever shall sooner occur. Said alimony is non-modifiable as to duration and amount.
6. Each party shall continue to own and hold free of any claim of the other of any and all personal property tangible and intangible in their own names, including automobiles, expect as expressly provided herein. With respect to any disputes regarding tangible personal property, the court shall retain jurisdiction to assign ownership provided a motion is filed within sixty days requesting the court to act.
7. Each party shall retain the IRA, 401K, pension and retirement accounts in their own names without any claim from the other, except for the IRA Vanguard fund in the amount of $42,806 at the time of trial, which shall be divided equally between the parties. The parties shall share equally in any investment increment for the $42,806.
8. The plaintiff shall retain her interest in all accounts in her name alone, namely the Charter Oak Federal Credit Union in the amount of $300.
9. The defendant shall retain his interest in all accounts in his name alone, namely, two accounts with Ledge Light Federal Credit Union.
10. Any accounts still held jointly shall be divided equally between the parties.
11. The defendant shall file all the necessary papers to provide COBRA medical insurance benefit for the plaintiff and shall pay the plaintiff's COBRA costs for a period of one year from the date of dissolution. The defendant's obligation will terminate on the plaintiff's death or when she becomes ineligible for COBRA, but not beyond one year from the date of dissolution. The premium shall be deemed alimony and shall be taxable to the plaintiff and deductible by the defendant for income tax purposes pursuant to I.R.C. § 71. Should the plaintiff elect to continue with COBRA coverage past the one year, the defendant shall cooperate; however, any cost shall solely be the responsibility of the plaintiff.
12. Each party shall retain any automobile presently in their name as listed on their respective financial affidavits, free and clear of any claim by the other and shall indemnify and hold the other harmless with respect to all debts, liability, and taxes related to said automobiles.
13. Except as otherwise set forth herein, the parties shall each be responsible for the debts as shown on their respective financial affidavits, and they shall indemnify and hold each other harmless from any further liability thereon.
14. With respect to any disputes regarding tangible personal property not allocated herein, the court was furnished with a list of personal property and identified as Defendant's Exhibit H. Said personal property and home furnishings shall be divided in accordance with Schedule A attached hereto and made a part hereof. Any appliances and window coverings located at the respective properties shall be conveyed with those properties including air conditioner units.
15. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per Practice Book § 25-59A(h).
Judgment shall enter in accordance with the foregoing.
Swienton J.
SCHEDULE A Items to the plaintiff, Linda
27" television
dresser #1
dresser #2
dresser #3
pots and pans
lawn tools
any other wall pictures or decorations
upright vacuum cleaner
office furniture
lawn mower
nesting tables
4 candle holders (tall)
DVD player
sub woofer
2 satellite speakers
queen size bed
specialized cirrus bicycle
Items to the defendant, Joe
couch
loveseat
coffee table
armoire
kitchen table with leaf and 4 chairs
bookcase
writing table
twin bed headboard
2 floor lamps
stereo receiver
wrought iron mirror
tape deck
turntable
Pintail kayak
power tools
Hoover cannister vacuum cleaner
dishes
glasses
cups
dinnerware
cooking utensils
specialized Rock Hopper bicycle
Michael Chin photograph of Central Park
bed linens
towels
dehumidifier
19" television
storage cubes (2)
rotisserie cooker