Opinion
No. FA 09-4046799 S
March 21, 2011
MEMORANDUM OF DECISION
I BACKGROUND
The parties to this dissolution action were married in Newington on May 22, 1992. Two minor children were born issue of the marriage, Jesse D. Turgeon, whose date of birth was February 23, 1995 and Kelsey M. Turgeon, whose date of birth was March 17, 1999. This case was tried before the court on March 7, 2011.
The parties are in good health and are steadily employed. Although the parties earn approximately the same income at this time, the defendant has made significantly more money in the past. His traditional area of employment involves auto body repair and painting. Although he is currently employed in this field, he made significantly more money as a paint salesman and as the owner of his own auto body business until recently and over the course of several years. The plaintiff has been steadily employed by Marshalls for over twenty years and now works for this large retail company in an administrative capacity.
The primary issue disputed between the parties is the earning capacity of the defendant for the purposes of alimony and child support, based upon his historical earning capacity. The parties also dispute the equitable division of their interests in the marital home, located at 56 Berkshire Road in Rocky Hill, as well as the defendant's half-interest in a property inherited from his mother and subject to his father's life estate, located at 556 Orchard Street in Rocky Hill. However, the defendant has previously quit-claimed his interest in the marital home to the plaintiff, who refinanced the mortgage in her own name. In addition, the plaintiff has previously executed a document waiving any interest she may have in the property inherited by the defendant.
The defendant informed the plaintiff that he no longer desired to be married and that he considered the marriage to be over in September of 2009. Within one week, the plaintiff insisted that the defendant leave the marital home. On a temporary basis thereafter, the defendant lived on the premises of his auto body business until a studio apartment above his place of business became available in October of that year. His business has since faltered and has been dissolved. He now lives in an apartment with his girlfriend with sufficient room to facilitate overnight access with his children.
Upon his departure from the marital home, the defendant concluded that he would transfer a small bank account, as well as the family home and vehicles to the plaintiff, believing that, in exchange, he would pay child support but no alimony. However, under the circumstances presented at the time of trial, he now owns no transportation other than his Harley-Davidson motorcycle and the plaintiff has a significant gap between her income and expenses associated with maintaining the family home.
At the conclusion of the trial, the court found that the defendant's gross weekly income of $720 reflects his current earning capacity, based upon a finding that he was unable to successfully maintain his auto body business, dissolved soon after the breakdown of the marriage in September of 2009. The court additionally concluded on the record that the parties shall maintain their current titles and equitable interests in the disputed real property. Further, the court concluded that this is an alimony case for reasons set forth in the record, reserving judgment on the specific amount to be ordered under the facts of this case.
II FURTHER FINDINGS AND ORDERS
After reviewing the evidence and evaluating the testimony of the parties, the court makes the following findings and conclusions, in addition to other findings of fact made by the court, infra. The court has jurisdiction in this case and the marriage has broken down irretrievably with no reasonable expectation of reconciliation. Neither the parties nor their children have received state or municipal assistance during the course of the marriage. Based upon these findings, the marriage of the parties is ordered dissolved effective this date of judgment and the court issues the following orders concerning custody, support and property:
A. Custody and Support
As agreed upon by the parties, they shall have joint legal custody of their two minor children. Primary residence shall be with the plaintiff. The defendant shall have flexible and liberal access.
The defendant shall pay child support to the plaintiff by immediate wage withholding in the weekly amount of $175 pursuant to the Guidelines. This amount is the existing order of support and is consistent with the Child Support Guidelines. The parties shall share unreimbursed medical expenses and qualifying daycare expenses, with the plaintiff paying 64% and the defendant 36%. These percentages are also consistent with the Child Support Guidelines and shall be applied to all unreimbursed and necessary medical, psychological, psychiatric, dental and orthodontia expenses. Payment is due within thirty (30) days of providing sufficient proof of the unreimbursed expense to the other party.
The guideline worksheet shows the specific presumptive amount of $168; however, the existing order of $175 is ordered in this judgment of dissolution and is nonetheless within the allowable 15% pursuant to the guidelines, absent a finding of deviation.
B. Tax Deductions
The parties shall each be entitled to claim one minor child as an exemption for state and federal tax purposes. At the time when only one exemption is available, the parties shall alternate that exemption with the defendant claiming the exemption in even numbered tax years.
C. Medical and Dental Insurance
The plaintiff shall provide medical and dental insurance for the benefit of the minor children, so long as said coverage is available to her through her employment at a reasonable cost. In the event said insurance is no longer available to the plaintiff through her employment at a reasonable cost, the defendant shall provide said coverage if it is available to him through his employment at a reasonable cost. If said insurance is unavailable to either party at a reasonable cost, then HUSKY insurance shall be provided.
D. Life Insurance
Each party shall continue to maintain and be the owners of any existing life insurance policies, and they shall be responsible for the cost of their own premiums. Each party shall name the minor children as irrevocable beneficiaries on any such policy so long as they are eligible for support under General Statutes §§ 46b-84 and 46b-56c.
E. Post-Secondary Educational Support
The court shall retain jurisdiction to enter educational support orders for the benefit of the children pursuant to General Statutes § 46b-56c.
F. Alimony
The statutory authorization for the award of alimony in dissolution cases is provided in General Statutes § 46b-82, and "the purpose of both periodic and lump sum alimony is to provide continuing support." Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005). Based upon the facts of this case, and having considered all the statutory factors pursuant to General Statutes § 46b-82, the defendant shall pay to the plaintiff alimony in the amount of $50 per week for a period of eleven (11) years from the date of the dissolution. This award is non-modifiable as to duration, but shall terminate upon the death of either party or upon the remarriage of the plaintiff. The award is modifiable in the event of a substantial change in circumstances by either party and in the event of the plaintiff's cohabitation as defined by statute.
General Statutes § 46b-82 provides: "(a) At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment."
G. Real Property
"The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well . . . General Statutes § 46b-81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property." (Citations omitted; internal quotation marks omitted.) Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004); see Clark v. Clark, 115 Conn.App. 500, 505, 974 A.2d 33 (2009); also see General Statutes § 46b-81.
The provisions of General Statutes section 46b-81 are as follows: "(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. (b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties. (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, 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 in the acquisition, preservation or appreciation in value of their respective estates."
The defendant previously quitclaimed his interest in the family home located at 56 Berkshire Road in Rocky Hill to the plaintiff, who has refinanced and removed the defendant's name from the mortgage. Based upon the plaintiff's $180,000 estimated fair market value of the marital residence, there is $75,000 of equity in the home. It is also worthy to note that the defendant used inherited funds to remove a second mortgage from the title to this property and to make other improvements to this property. However, because the plaintiff now seeks an award of alimony, the defendant seeks the return of $30,000 of the equity in the home. In addition, the defendant seeks to retain his inherited interest in his mother's home located at 556 Orchard Street, Rocky Hill, now encumbered by a life interest for the benefit of his father. The current value of his undivided half-interest in this property is estimated to be $70,000.
Based upon the facts of this case, the court orders that the defendant shall have no claim to the marital home or its accumulated equity and the plaintiff shall have no claim to the defendant's inherited home in which he has an undivided one-half remainder interest, subject to his father's life estate.
In addition, the defendant shall retain the cemetery plot.
H. Other Property
The parties shall each retain their interests in any bank accounts, retirement accounts, IRA accounts and pensions in their own names. The court notes that the value of the defendant's interest in such accounts exceeds that of the plaintiff by approximately $25,000.
Each party will keep the motor vehicles that they are driving and shall be responsible for any debts and costs associated therewith, except that the defendant shall have possession of the 2001 Dodge Ram which currently is in the plaintiff's possession, to wit: the defendant shall retain the 2007 Harley Ultraclassic. The plaintiff shall retain the 2003 Mazda MPV.
Each party shall sign any paperwork necessary to effectuate the transfer of ownership of the various assets in the possession of the other party, including motor vehicles.
The defendant shall be entitled to the following personal property that is located at the family home: his tools from the shed and the garage including the air compressor and heating furnace, and the Carefree shed.
I. Liabilities
The parties shall each be responsible for the liabilities listed on their financial affidavits, and shall hold each other harmless. Although the defendant's liabilities are significantly greater than those of the plaintiff's, many of the defendant's liabilities are associated with his failed business.
SO ORDERED.