Opinion
No. FA02-0172508S
December 9, 2003
MEMORANDUM OF DECISION
This action for dissolution of marriage and other relief was brought to the judicial district of Waterbury on July 16, 2000. The case was tried to the court on August 14, August 15, and October 1, 2003.
The court finds the following facts. The plaintiff married the defendant at Wolcott, Connecticut on August 24, 1995. The plaintiff has resided continuously in the state of Connecticut for at least twelve months prior to the commencement of the action. The court has jurisdiction. The marriage of the parties has broken down irretrievably. The court finds that both parties are equally responsible for the breakdown. There are no minor children issue of the marriage. Neither party has received financial assistance from the state of Connecticut or from any town or municipality thereof.
Based on the evidence presented, the court finds the following additional facts. During the six and one-half years of marriage the parties enjoyed a comfortable lifestyle. They ate at restaurants two or three times each week from 1995 to 1997. The parties had a subscription to the Hartford Stage Company, and the wife was able to spend freely on clothing and beauty parlor appointments. The parties renovated a home owned by the plaintiff's parents expanding a small cape into a larger home. They made improvements which included new carpeting, a new bathroom, central air conditioning, and a hot tub. Their furnishings included a large screen television, a surround system and many appliances and electronic equipment. The plaintiff paid all household bills including household help, taxes, medical insurance and automobile insurance.
The parties deposited their earnings into a joint checking account when the defendant was employed. Subsequently, they opened their own accounts.
The parties did not vacation together. The wife sought to spend more time with the plaintiff, who traveled extensively in his employment, but he did not accede to her wishes. For the last three years the plaintiff has maintained an apartment in Meriden with another gentleman where he entertains female guests. He pays $400 per month in rent. The parties engaged in an alternative lifestyle and shared in a menage a trois with a housekeeper between 1997 and 1999. The defendant vacated the marital domicile in the winter of 2003. Since November 18, 2002, the plaintiff has paid the defendant $275 per week as alimony. He also paid for her storage expenses for four months after she vacated the marital home.
When the parties married, the plaintiff was employed at Stanley Works where he had worked since 1978. He remained there until March 1997. During those years he contributed to the Stanley Works retirement program. He then obtained employment at PES America, Inc. and worked there until March 24, 2003 when PES merged with a firm in Canada. He earned a salary of $87,500. He also received annual bonuses ranging from $6000 to $10,000. The plaintiff specializes in advising and providing airports with equipment for parking revenue control. He traveled frequently with his last employer. He is presently seeking employment in his field. However, he provided no evidence documenting his search for employment and the amount of time it occupies. He receives $411 gross income per week from unemployment compensation. He is in good health. The court finds he has an earning capacity of $87,500.
At the time of his separation from PES, the plaintiff received $30,000 in severance pay. From this amount he paid household bills and taxes and repaid a loan from his parents in the amount of $10,000. The plaintiff owns a 1990 GMAC pick-up truck with equity of $3,000 and a Harley-Davidson motorcycle he values at $12,000. Nevertheless, he leases a BMW. His bank accounts total $2,752. The hot tub which he installed in his parents' home is valued at $5,000. He has a 401K plan from PES valued at $33,730.
Conley married the plaintiff when she was a full-time student seeking a master's degree in Counseling Psychology. For two and one-half years she worked at Crisis Hotline providing telephone therapy and earned $22,500. From 1997 to 1999 she also bartended and performed as an exotic dancer. She then worked at Infoline for two and one-half years from 1999. Between 1999 and 2001 she received treatment for Hepatitis C which left her tired and nauseous. In 2000 she suffered from a bulging disc of her back. As a result of these conditions, she collects social security disability payments in the amount of $998 per month and her medical expenses are covered by Medicare. She claims she is unable to work because she has problems with her memory and suffers from fatigue. She provided no documentary evidence as to these conditions. Accordingly, the court finds that the receipt of social security disability benefits is not conclusive as to state of her health. See Tevolini v. Tevolini, 66 Conn. App. 16, 25-30. The court finds that she has an earning capacity of $15,000 based on her counseling skills. For the last 3 ½ years she has been engaged in her own rubber stamp business buying and selling on the Internet and in booths at craft fairs. These endeavors constitute a "hobby" rather than employment and yield very little income.
In November 2002, the defendant received a lump sum Social Security award of $32,467 from which fees and costs were deducted, resulting in a net award of $27,467. She used this money toward the purchase of a condominium. The condominium is valued at $85,000. She has a mortgage of $62,045. She has $2,790 in her bank accounts and $4,959 in Webster Investment Premier Asset fund. She also has a Roth IRA account valued at $2,046.
The parties' central dispute concerns the value of the Crossroads Cantina, a restaurant and bar in Waterbury and whether the defendant is entitled to an interest in it. Suchinski opened this business in 1997. He loaned $25,000, the net proceeds of his Stanley Works retirement fund to Crossroads Cantina to begin the business but he testified that the loan is not repaid. Furniture, furnishings and equipment were purchased to open this Tex-Mex restaurant and bar. The premises and land were leased for five years with renewable options for five-year terms. In June 2003 a deck was added to the building which cost $5,000. The restaurant accommodates 110 persons. In addition he paid approximately $50,000 toward a loan from the Small Business Association in the total amount of $100,000 which he obtained four years before trial. Exhibit 5.
The defendant developed menus, flyers and promotional materials and shopped for novelties for the restaurant. Both parties intended that she tend bar. However, at the opening, the parties quarreled in the plaintiff's office. The defendant opened the bar and then left. She bartended for three to four months receiving tips only. The parties continued to quarrel frequently. The plaintiff denigrated the defendant in the presence of the employees and patrons. He kept information about the business from her. She ceased bartending at the Cantina.
On June 24, 2003, the parties agreed that the plaintiff would furnish information regarding the Cantina to a business appraiser. The appraisal was not completed by the time of trial. Exhibit H. The court did not hold a hearing on the failure to obtain an appraisal as counsels' arguments to the court aired recriminations from each side. However, it is clear from a review of the file, that both parties failed to utilize the procedures for discovery set forth in the Connecticut Practice Book to ensure compliance.
Nevertheless, the court permitted the defendant's hastily-obtained appraiser to testify as to the value of the Cantina. He reviewed tax returns, the lease, the liquor license, and visited the Cantina to observe the furnishings, furniture and any visible equipment. He used a concept of "maintainable earnings" in order to arrive at a figure ranging from $288,000 to $600,000 in business value. The scant weight the court places on his testimony has little to do with his capabilities but more to do with the lack of time he had to adequately prepare. He was unable to conduct the customary research. Therefore, the court has made its own determination of the value of the Cantina based on a review of the tax returns and the weight it gave the testimony of each party.
The court finds that the plaintiff averred that he is a 100% shareholder on the Sub S Corporation tax returns. This is at variance with his testimony that he owns 50% of the business with Joseph Wise, to whom he had been introduced by his wife, who owns the remaining 50%.
There is no documentary evidence or testimony to support the claims made on Schedule L, line 19 of the 1998 through 2001 Form 1120S tax returns. These returns indicate "Loans from shareholders" in amounts higher than the initial $25,000 and subsequent $100,000 to which Suchinski testified. Additionally, the court notes that the 2000 business tax return reflects that the Cantina made a payment in the amount of $17,662 toward a loan from shareholders. Exhibit F, Schedule K. The plaintiff provided no explanation for the loan payment.
Also unexplained is the reason for and the recipient of interest in the amount of $11,639, paid in 1998 by the Cantina. (Exhibit D, line 13.) This is noteworthy in view of the absence of interest paid in years 1999, 2000 and 2001 (Exhibits E, F and G, line 13) and in view of the amounts which appear on IRS form 1120S, line 19, "Loans from Shareholders" in 1998, 1999, 2000 and 2001. The source of these funds were not clarified inasmuch as they exceed the total sum of $125,000 including the initial loan of $25,000 and the proceeds from the SBA loan. The payments to the SBA of $1,574 per month do not appear on Suchinski's financial affidavit. The source of funds for this monthly payment is not denoted.
Suchinski reports no income from Crossroads Cantina. He testified that Wise receives $500 weekly in gross salary for work he performs there. There were no IRS 1099 forms attached to the tax returns submitted and no independent corroboration of this information. The plaintiff himself provided no explanation as to the reason he does not work for wages at the Cantina.
The court finds that the plaintiff's testimony regarding his financial dealings with the business were not wholly truthful nor fully disclosed. The court finds that the value of the business is $350,000 and that the plaintiff is the sole owner of the corporation.
The court has reviewed all of the evidence and observed the demeanor of the parties. The court finds that neither party was forthright in presenting testimony. Based on the foregoing and on a consideration of §§ 46b-81 regarding the assignment of marital property; 46b-82 concerning the award of alimony; and 46b-62 concerning the award of attorneys fees, the court enters the following orders.
1. The marriage of the parties is dissolved on the grounds of irretrievable breakdown.
2. The plaintiff shall pay to the defendant the sum of $385 per week as alimony. Alimony is to terminate upon the earliest of the following events: (a) the death of the plaintiff; (b) the death of the defendant; (c) eight years from the date of the dissolution judgment. This sum shall be nonmodifiable as to amount.
3. The plaintiff shall transfer his interest in the Toyota Rav 4 automobile to the defendant within 30 days. The defendant shall be responsible for paying the taxes and insurance costs associated with the vehicle and hold the plaintiff indemnified thereon.
4. The plaintiff shall assign one-half his interest in his PES 401K plan to the defendant by way of a Quadro to be prepared at his expense within 60 days.
5. The plaintiff is to retain all the remaining assets listed on his financial affidavit. The defendant is to retain the assets listed on her financial affidavit.
6. Each party is to hold the other harmless and indemnified on the liabilities listed on the financial affidavits each submitted at the time of trial.
7. The plaintiff shall possess the two cats Spike and Baby.
8. Each party shall pay his/her own counsel fees.
All other claims for relief have been considered and are denied.
LEHENY, JUDGE.