Opinion
TTDFA176013041S
10-31-2018
Dale Vanfossan v. Jean Vanfossan
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Armata, Barry, J.
MEMORANDUM OF DECISION
Armata, J.
The trial of the above matter was heard over the course of two consecutive days, September 25, 2018 and September 26, 2018. Additionally, at the request of counsel, the court held the evidence open until October 17, 2018 for the parties, through counsel, to submit additional evidence including a possible stipulation regarding home valuation, Social Security Regulations that the plaintiff’s counsel sought to have the court take judicial notice of, and for the defendant to consider offering additional argument or evidence relative to the treatment and distribution of the plaintiff’s military pension that was argued by plaintiff’s counsel during closing argument. The only witnesses presented were the parties. Over thirty-three exhibits were admitted into evidence as full exhibits by agreement of the parties.
EVIDENCE PRESENTED AND FINDINGS
Based upon the testimony and evidence presented at trial, the court finds by a preponderance of the evidence as follows. All valuations of assets were made as of the date of dissolution and as valued by the parties on their financial affidavits, unless otherwise specified. The court also notes that it has jurisdiction over the matter and that all statutory stays have expired.
By way of background, the parties met November 11, 1989. They dated for forty days and the plaintiff proposed on December 30, 1989. The parties were married on June 23, 1990 in Somers, Connecticut. The marriage is the first for the plaintiff, Dale VanFossan, and the second for the defendant, Jean VanFossan, whose birth name is Jean Magnificent. Although the plaintiff is currently a resident of Arizona, previously he has resided in the State of Connecticut, while the defendant has resided in Connecticut for twelve months prior to the institution of this action. There are two children of the marriage, twins, Lauren VanFossan and Wyatt VanFossan, born July 25, 1996, both of whom are over the age eighteen and are not the primary subject of this hearing. Neither the parties, nor their children, have received financial assistance from the State of Connecticut.
The plaintiff is fifty years of age and will be fifty-one on December 19, 2018. He has no significant health problems, although in the past he has had cancer, for which he has been medically cleared. There was also testimony that plaintiff suffers from asthma. The plaintiff served twenty-four years in United States Navy from March 14, 1986 until June 30, 2010 when he was honorably discharged. During much of the plaintiff’s military service he was on submarines with some of that time being at sea. During his testimony, the plaintiff testified that he moved many times due to his job, some of those times with the family. He indicated that he and his wife lived in Bangor, Washington from 1990 to 1994, where he was a submarine radio man. The couple, based on a military transfer, returned to Connecticut in 1994 and lived in Groton. In 1995, the parties lived in Somers, Connecticut. The plaintiff indicated during the week he would stay in the barracks or hotels to prevent the long commute to and from Groton. He also testified that when he was at sea, he would serve on a rotation with two months at sea and four months at dry dock. In 1996, while his wife resided in Somers, the plaintiff worked in Kings Bay, Georgia and was there for two years. During this time he would fly back and forth as the family could afford it. The plaintiff was here for the birth of the children and for the two weeks following the difficult birth. In 1999, the plaintiff returned to Connecticut and again worked in Groton and remained there until 2004. From 2004 until 2005, the plaintiff again returned to Bangor, Washington and the family was with him. In 2005, the family relocated to Arizona, although the plaintiff was working out of San Diego, California. In 2006, the plaintiff worked out of Portsmouth, New Hampshire, and in 2007, the plaintiff worked out of Hawaii. In 2007, the plaintiff again worked out of the Groton sub base until he retired in 2010. At that time, the family was residing in Somers, Connecticut. In 2010, the plaintiff took a job in the Maryland and Pennsylvania area, while his family remained in Somers so the children could attend high school there. The plaintiff eventually got a job in the Hartford area working for Pratt & Whitney, a division of United Technologies Corporation. In 2017, with the support of his wife, the plaintiff accepted another position in Tucson, Arizona with Raytheon. The plaintiff continues to reside in Tucson. The defendant agreed with the history as testified to by plaintiff and accordingly, the court finds the testimony is true.
Currently, the plaintiff is employed by Raytheon, where he is a Manager II of Industrial Security. Pursuant to his employment letter (plaintiff exhibit #1), he earns a base annual salary of $113,006.40. He is also entitled to "Performance Sharing" which is based on company performance. The plaintiff also received a $10,000 "Sign on Bonus," which the family applied towards their daughter’s college expenses. The plaintiff also was entitled to relocation expenses for his move from Connecticut to Arizona, with some of that already paid and some to be paid in the future. During his testimony, the plaintiff indicated that in addition to his base pay, he is currently receiving overtime compensation of approximately 5.5 hours per week at a rate of $54.33 per hour or an additional $299 per week, although he indicated that it is not guaranteed and he expects the same to decrease in the future as his team hires more members. On cross examination he admitted that he did earn overtime for the majority of this year at Raytheon.
The court did not receive any testimony related to this benefit.
The plaintiff also testified that he is receiving his military pension and the same is being deposited in the joint martial checking account per the December 4, 2017 pendent lite order of the court (see #104). The plaintiff testified that he receives a gross amount of $2723, but from that $269.30 is deducted representing his Veterans Affairs Waiver for disability payments he received and $177.19 for the Survivor Benefit Plan ("SBP") he elected at the time to receive his pension, March 14, 1986.
The plaintiff also testified that he is reimbursed for the $269.30 and that it is not assignable to the wife. The plaintiff contends that this same amount should be excluded prior to division by the court.
The plaintiff indicated he did so, so that wife could receive one-half of his pension in the event of his death and he contends that the parties should split the same, since she benefits from that election.
The plaintiff stated on his financial affidavit that his current annual salary is $112,996, with a gross weekly base income of $2,173. In addition to his base salary, the plaintiff reported overtime income of $437 and pension income of $633 for total gross weekly wages of $3,243. The plaintiff also claims deductions of $953 per week, leaving him a net weekly income of $2,290. The court finds the figures on the plaintiff’s financial affidavit to be true and accurate.
The defendant is 60 years of age and testified to significant health problems for which she has been deemed totally disabled by the Social Security Administration. Many of these physical issues arose after the family was in a severe car accident in 2004. The defendant, who has a high school education, indicates she suffers from the following: neck and back problems, including bulging discs and herniated cervical discs, bone spurs, issues with her ankle, asthma, chronic bronchitis, arthritis, bursitis, migraines which cause her sight issues, a hiatal hernia, "a slap tear" in her shoulder, plantar fasciitis, throwing up every day, and other health concerns. The defendant recited to the court a long list of medication she takes to alleviate these conditions. She also testified that she attends multiple doctors and medical appointments during the week. The defendant applied for social security disability in March of 2009 with the support of the plaintiff. She was awarded the benefits on July 17, 2012 (defendant exhibit #A). The plaintiff did not challenge or present any countervailing evidence relative to defendant’s health condition and in fact acknowledged that she suffers from significant heath impairments. Accordingly, the court finds that the defendant’s recitation of her health condition is accurate.
It should be noted that in the Notice of Decision, the following Findings of Fact were found: "The claimant (plaintiff) has not engaged in substantial gainful employment since March 30, 2009 ..."; "The claimant (plaintiff) has the following severe impairments: lumbar spondylosis and facet joint syndrome, depression and anxiety ..."; "The claimant (plaintiff) has the residual functional capacity to perform sedentary work ... except the claimant cannot sit continuously in a work setting and must get up and move around frequently. The claimant can only occasionally lift and/or carry up to ten pounds and bend, and she can never climb ladders or stairs. Secondary to chronic pain, the claimant will be off-task frequently, and she will require unscheduled breaks of unknown duration at unpredictable intervals. Furthermore, the claimant will be absent from work more than three times a month due to her impairments."
The defendant during her testimony also recited a long work history including: owning a jewelry store in Somers, Connecticut; being an assistant manager of fine jewelry at JC Penney and selling over $400,000 in fine jewelry; being a sales manager for big business accounts for Collins & Co., and being promoted while there. The defendant also testified that she sold insurance for Nationwide Insurance while in Arizona. The defendant also testified that in the past, before social security disability, she earned an annual salary in excess of $50,000. There was also testimony that the defendant has had "home" jewelry parties at neighbors’ homes, which did not produce much income.
The defendant stated on her financial affidavit that she has no income from employment and shows gross weekly income of $404 per week from Social Security (disability). The defendant also claims deductions of $25 per week, leaving her a net weekly income of $379. The court also finds the above to be true and accurate and that the defendant is incapable of producing any additional income from gainful employment and that the only income she is producing for the family is the social security benefit she is receiving.
Much of the testimony of the parties focused on the wife’s income and ability to obtain the same. The plaintiff, through his counsel, argued that the defendant has an earning capacity, is having her sister reside with her free of charge, which could provide rental income, and that the parties’ daughter, who is over the age of twenty-two, a college graduate and gainfully employed, could also contribute income to defendant’s household. There was also testimony about the daughter’s health condition.
Per social security regulation, the plaintiff claims the defendant can earn up $1,180 per month without penalty. On October 12, 2018, the court received from the plaintiff’s counsel a pamphlet form published by the Social Security Administration entitled "Working While Disabled: How We Can Help ." The publication indicates that after a trial period, a person on social security disability has 36 months during which they can work and still receive benefits for any month their earnings are not "substantial," which in 2018 was considered earnings over $1180 per month or $14,160 per year. [Publication No. 05-10095.]
The defendant testified that her sister, who did reside with her following some familial issues related to her son, is no longer residing there. The court will note that the plaintiff testified that the defendant’s sister residing in the martial home was a source of contention for him. He also testified, however, that he did not object to defendant’s sister residing there; did not ask the defendant if the sister was contributing to the home; and has no knowledge of what contributions, financial or otherwise, she made. The court finds the same credible, thus no income is ascribed to the sister-in-law for residing in the marital home.
The court also heard evidence that defendant’s mother was residing with the family in Somers and that accommodations had to be made to the house due to the mother-in-law’s disability. The mother-in-law is now in a nursing home and the plaintiff testified that he agreed the mother-in-law should reside with the family. In fact, the mother-in-law provided familial support to her daughter and grandchildren while the plaintiff was away including child care, assistant with defendant’s medical issues, and, in fact, relocated with the family at times throughout the marriage. The husband made no argument that mother-in-law should have contributed income to the family home.
The defendant also testified about how much the parties’ daughter relies on her to function in everyday life. The court does not find the same credible but will also not ascribe any income relative to the daughter residing in the marital home in that the daughter just graduated college, has only recently began employment, and could relocate to a place of her own. Further, no evidence was introduced as to the daughter’s income and expenses or what a reasonable rent would be to rent a room in Somers, Connecticut. Additionally the court heard testimony that the daughter is contributing to certain family monthly bills.
There was also testimony that both children, at plaintiff’s request, began contributing financially to the family, after they graduated college and secured employment, with Wyatt contributing to the expenses for the car he was driving, which is in the parents’ name, and his cell phone coverage; while Lauren started contributing in September of 2018 to the cell phone bill.
The defendant also testified that the fault for the breakdown of the marriage rests with the husband, who has possibly engaged in infidelity, has alcohol issues, was having her followed and videotaped, and is choosing to "walk away" from her because of her physical issues, but the court heard no reliable, credible evidence regarding the same. Additionally, the defendant contends that she knew "something was wrong" in 2017 and believed that plaintiff had "a plan" because he was turning 50 and wanted a new life, she also believed that plaintiff did not want to take care of her, thus he initiated this action. On the other hand, the plaintiff claims the marriage broke down due to poor communication between the parties, that the couple grew apart, and that both of them are at fault for the demise of their marriage. The court also heard evidence of the times the plaintiff was away from the family due to his military service to the country, the moves the family had to make, and the sacrifices made by the family due to the plaintiff’s military career. The court acknowledges the sacrifices military families make in the service of this country, both those serving and the families remaining at home. The court commends the parties and their family for the same. The plaintiff also testified that he sought to have the defendant relocate to Arizona with him so they could start anew and repair their relationship. The defendant declined to do so, although she consented to the plaintiff’s request to apply for the Arizona job. The court finds that the marriage of the parties has broken down irretrievably, with no possibility of reconciliation. No fault, however, is ascribed to either party for the breakdown of the marriage.
It is the defendant’s belief that plaintiff had extra-marital affairs with the owner of a bed and breakfast where plaintiff would stay while working in Rhode Island and a former boss. The plaintiff denied these claims.
The plaintiff testified that while he does have a few drinks (two to three), a few times per week, and generally on weekends, he has not been arrested for driving while impaired, it has not affected his employment and that the defendant also consumes alcohol. The plaintiff does not believe he has a drinking problem and the court agrees.
The court also heard evidence that the defendant had initiated a dissolution action, but did not return the papers to the court after they were served because the plaintiff filed his complaint with the court, and that the parties, prior to initiating any action, attempted to resolve their divorce through mediation which was unsuccessful.
One of the main issues in the case is the disposition of the marital home and the time frames employed in the sale. The parties purchased the home, which is a 2-story, 4-bedroom, colonial type home in Somers, Connecticut in 2007 for $440,000. At the time of the purchase, the defendant, who is a licensed real estate agent, was able to contribute $13,200 towards the purchase of the home by acting as an agent on the transaction. The parties gave differing values as to the marital home with the plaintiff indicating the value is $385,000, while the defendant ascribes the value at $357,200. No evidence was produced as to how the parties arrived at these values. The defendant testified that she believed that at the time they took out a home equity line of credit in 2017, the appraisal came back with the home having a value of $370,000, although the appraisal was not produced at the time of trial. The court finds the value of the home to be $370,000. The home is subject to a first mortgage. The plaintiff, on his financial affidavit, reports that the amount owed on the first mortgage is $309,000 although he testified that defendant was in charge of the family finances and that she has a better understanding of what is owed. The defendant on her financial affidavit, reports that the amount owed on the first mortgage is $298,141. In determining the equity, the court ascribes a first mortgage amount of $298,141. Additionally, both parties indicate that by agreement they took out a home equity line of credit in 2017 to pay off $50,000 of marital debt. The plaintiff on his financial affidavit, reports that the amount owed on the home equity line of credit is $50,000, while the defendant on her financial affidavit, reports that amount as $49,300. The court ascribes a value to that loan of $49,300. The defendant also testified that there are repairs that needed to be made to the marital home. The defendant’s counsel argued that the court should consider the costs of the sale in fashioning its orders and suggested 8% would be an appropriate amount. Whereas, the plaintiff’s counsel, on behalf of his client, who is seeking the immediate sale of the home, suggested the court use 5% for closing costs considerations. The court does find that it is fair and equitable to consider the costs of a sale in determining the equity that would be realized if the home was sold in the near future and agrees with the defendant that an 8% figure would be appropriate, thus negating any potential equity the parties would realize from the marital home.
There was testimony about the fact that defendant is currently maintaining her real estate license, and the plaintiff argued that the defendant could use the license to generate income for her and the family. The defendant indicated she has obtained value for the family by maintaining her license and that she does not wish the same to lapse. The court does not find that defendant could generate income from her real estate license.
The parties testified that they were hoping for a higher value on the marital home so as to draw out more equity to pay off the $75,000 marital debt, but the parties were only, based on a $370,000 home value, able to borrow $50,000, leaving $25,000 of the debt still outstanding.
In terms of the time for the sale of the marital home, the plaintiff seeks an immediate sale and that the parties equally divide any profit or loss from that sale. The plaintiff asserts that he cannot move forward and purchase a residence in Arizona if his name remains on the current mortgage and that it must be difficult for the defendant, given her physical limitations, to reside in a two-story house that requires maintenance and that she would be better served residing in a ranch style dwelling. While the defendant agreed to some extent, she wishes to remain in the martial home. The plaintiff also proposes a mechanism to effectuate the sale in the event of a dispute or should the property remain on the market for a period of time. The defendant, on the other hand, request that she be given five years to prepare the house for sale. She testified that due to her physical limitations, preparing for the sale would be difficult in that the home is filled with family member’s possessions, including extended family, the children’s etc., making it difficult for her to prepare the home for sale. Additionally, she does not feel she could purchase some place to relocate to, but with 5 years, she could pay down the loans against the home and thus realize equity.
The court also heard testimony concerning the family debt, which is considerable. As noted before, the parties took out a home equity line of credit to pay off as much martial debt as they could. Out of the $75,000 marital debt, only $50,000 could be paid off from the home equity line of credit, leaving a balance of $25,000. The parties increased their debt by incurring significant legal fees in connection with this case and the wife continued to use the joint credit cards for purchases that as plaintiff testified he "did not benefit from these transactions." (Plaintiff’s exhibits 7-13.) A review of the purchases, however, show small, traditional, and customary purchases for food, postage, clothing, veterinary bills, auto repair, oil for the home, etc. The debt as presented to the court from the parties’ financial affidavits include the following: a Visa card in plaintiff’s name with a balance of $4,750; a joint Sears account with a balance of $1,463; a joint Kohl’s account with a balance of $1,742; a sole Best Buy Visa with a balance of $4,853; a joint Chase Slate account with a balance of $16,000; a joint Citi Card account with a balance of $17,000; a sole American Express Macy’s account with a balance of $1,547; a joint Macy’s Am Ex account with a balance of $651; and a joint JC Penney account with a balance of $1,740. The debts listed on defendant’s financial affidavit total $44,996. Both parties also claim to owe attorneys fees relative to this case. In his proposed orders, the plaintiff seeks to pay 20% of the credit card bills listed on defendant’s affidavit and shall be solely responsible for his sole obligations. In her proposed orders, the defendant proposes the plaintiff pay $14,000 of the Chase Slate card; $6,590 of the Citi Card; the Best Buy Visa and Best Buy store card; and the she be responsible for the Macy’s, Macy’s Am Ex, Kohl’s, Sears, and JC Penney cards.
It should be noted that on plaintiff’s financial affidavit it indicates that there are joint credit cards in defendant’s possession and that have unknown balances. It is also noted by the court that the plaintiff testified that he left financial control of the family in defendant’s domain as he was away at sea, and the defendant did try to inform him of the debt by sending him statements and that he had access to the information on line.
The court believes this is the same Best Buy Visa account as reflected on defendant’s financial affidavit valued at $4,853.
There was also testimony of a second Best Buy store card in plaintiff’s name, but that is not reflected on either party’s financial affidavit nor did the plaintiff have knowledge of that debt, although testimony indicated that it may have been taken out to facilitate the couple’s daughter purchasing a computer for college. Accordingly, the court will not address it.
The plaintiff also testified regarding life insurance policies that he has on himself. The financial affidavit indicates that he has two term life insurance policies through Prudential and Raytheon. There was testimony that the policy from Raytheon has a face value of $113,000 and that there is another policy "SGLI" related to his service in the military with a $400,000 face value. During the hearing it was also proved that plaintiff has a $100,000 life insurance policy through Primerica, which also has a $200,000 rider on defendant that was taken out on August 28, 1999 and is still in effect. The plaintiff claimed he was unaware of this policy. The defendant has been making the premium payments on this policy.
Additionally, the plaintiff testified that he will receive a pension from the Department of Defense, as a result of his employment there, of $404 per month at retirement age. The plaintiff proposes that the defendant receive 50% of the martial portion of his military pension, less the deductions being taken out, and 50% of the Department of Defense pension. The defendant on the other hand proposes that she receive 60% of both pensions, together with any applicable cost of living adjustments as allowed under the plan. The court finds the values put into evidence are true and adopts those values.
Additionally, the plaintiff reports a thrift saving plan valued at $90,043. He also testified that he has a UTC Employee savings account that is unvested in the amount of $10,192.74 and that he will only receive it if returns to employment at UTC. The defendant concedes this is not an asset that should be considered because it is unvested and is remote in terms of realization. Accordingly, the defendant makes no claim to it. As with the pension, the plaintiff proposes to divide the thrift savings plan equally, whereas the defendant suggest a 60% distribution in her favor and testified that she intends to liquidate a portion of the plan to pay off debt associated with the marital home.
The parties also both testified that they have not cashed the joint 2017 federal tax refund in the amount of $5,704 (defendant’s exhibit N). The parties both testified relative to the conflict involved in having the return prepared with the plaintiff believing it would cost the family $350 and that his share would be $175, whereas the defendant testified it cost the family $1,000 to prepare the return. The court was also presented with evidence that Lauren had to advance funds, $68, to cover the plaintiff’s Arizona tax liability. (See defendant’s exhibit O- check #189). The plaintiff request that the refund be equally divided, while the defendant request that she retain the entire amount free of the plaintiff’s claim.
The court notes that the invoice relative to the return also reflects that it included the costs for the preparation for the 2017 tax return for Wyatt and Lauren. The balance of the $650 was paid by the defendant taking a $500 cash advance against plaintiff’s Best Buy Visa that is in his name, which the plaintiff contends was without his permission, and the balance of $150 being paid by the parties’ daughter. (See defendant’s exhibit O.)
The parties also testified as to the personal property that they have in their possession with plaintiff claiming he has minimal furnishings in his 400 square feet apartment in Arizona, while the defendant has an entire home full of fine furnishings worth thousands of dollars. The defendant disputes the plaintiff’s representations and indicates the furnishings in the home are worn and dated, and the plaintiff can take some of those furnishings if he so chooses.
The plaintiff testified that it is furnished with a bed and futon he purchased at Walmart.
The court also heard testimony relative to a 2018 Jeep Wrangler the plaintiff purchased in July 2018. The plaintiff had previously driven a 2012 Nissan Sentra with 70,000 miles on it and according to the testimony of the plaintiff, it needed expensive repairs for air conditioning and the transmission that were not covered by warranty. On cross examination, the plaintiff testified that he did not discuss this purchase with the defendant, that the repairs were going to cost between $750 and $1,000 for the transmission only, that the air conditioning "was acting up" and that he was unaware if there was an extended warranty on the car that would have covered the repairs. It was also noted that he did not seek court permission for the purchase of the Jeep, notwithstanding the automatic orders. According to his testimony, the plaintiff paid approximately $39,000 for the Jeep, and applied $4,000 from the trade in of the 2012 Nissan and also used $8,000 of savings he had accumulated while in Arizona. Per his financial affidavit, the plaintiff currently has a car loan of $27,183, requiring payments of $100 per week, for this automobile.
Finally, the defendant indicated she was seeking attorney fees in connection with her representation in this matter. The defendant put into evidence (defendant exhibit Q) a statement for legal fees owed through September 24, 2018 showing that she owes $6,380 for fees, which does not include the costs of the trial. The plaintiff on his financial affidavit indicates that he has an unknown amount for attorney fees. The court also heard testimony that defendant used $7,500 from joint funds as a retainer for her first attorney, who was replaced by defendant’s current counsel, as well charging an additional $5,600 towards his fees. The defendant is seeking a $5,000 contribution towards her outstanding legal fees.
The defendant testified that she charged $1,800 of her attorneys fees on the Chase credit card and $3,800 on the Citi credit card.
CONCLUSIONS
All pertinent criteria established by the General Statutes and applicable case law were considered by the court in the entry of the orders below, including but not limited to the applicable criteria set forth in General Statutes § § 46b-81 and 46b-82. Within the context of the court’s general application of the applicable criteria to the facts found, certain positions and arguments advanced by the parties warrant a more detailed analysis. In making its orders, the court has weighed the applicable statutory criteria and considered all the evidence it found credible including, but not limited to, the testimony of the parties and the documentary evidence which was submitted by both parties as full exhibits.
Additionally, the court must assess the parties’ credibility. "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... it is the quintessential function of the fact finder to reject or accept certain evidence ..." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Kervick v. Silver Hills Hospital, 309 Conn. 688, 718, 72 A.3d 1044 (2013). "The determination of credibility is a function of the trial court." (Internal quotation marks omitted.) Grasso v. Grasso, 153 Conn.App. 252, 259, 100 A.3d 996 (2014).
Alimony
As previously stated, the court is charged with deciding these matters based upon the statutory criteria set forth in General Statutes § 46b-82, which provides in relevant part the factors the court should consider when making any order regarding alimony.
"In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the evidence presented by each party and 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, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award ..." General Statutes § 46b-82(a).
Relative to the claim for alimony, the court must consider the purpose and need for the same. "[T]he purpose of both periodic and lump sum alimony is to provide continuing support." (Internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132-33, 869 A.2d 164 (2005); Gay v. Gay, 266 Conn. 641, 647, 835 A.2d 1 (2003). "The generally accepted purpose of ... alimony is to enable a spouse who is disadvantaged through divorce to enjoy a standard of living commensurate with the standard of living during marriage." Horey v. Horey, 172 Conn.App. 735, 740-41, 161 A.3d 579 (2017). "The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight ... We note also that [t]he trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case ... There is no additional requirement that the court specifically state how it weighed the statutory criteria or explain in detail the importance assigned to each statutory factor ... There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand." (Citation omitted; internal quotation marks omitted.) Conroy v. Idlibi, 183 Conn.App. 460, 468-69, cert. denied, 320 Conn. 921 (2018); Horey, supra, 741.
Once the defendant put her health in issue, it was incumbent on her to offer pertinent evidence to support her position, which she did by introducing her Social Security Determination Decision (defendant exhibit #A). See Powers v. Powers, 186 Conn. 8, 11, 438 A.2d 846 (1982) and Tevolini v. Tevolini, 66 Conn.App. 16, 27, 783 A.2d 1157 (2001) "A party’s health is one of the factors which draws its significance, in part, from the impact it necessarily has upon other statutory [§ 46b-82] factors. For example, a party’s health problem may also have an impact upon such things as vocational skills, employability, income and/or needs." A. Rutkin, S. Oldham & K. Hogan, 8 Family Law and Practice with Forms (2010) § 33.8, p. 47.
"Trial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes." Hartney v. Hartney, 83 Conn.App. 553, 559, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004). General Statutes § 46b-82 describes circumstances under which a court may award alimony. "The court must consider all of these criteria ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding[s] as to each statutory factor ... Nor need it give each factor equal weight." (Citation omitted; internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, supra, 273 Conn. 137; see also Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Rivnak v. Rivnak, 99 Conn.App. 326, 330, 913 A.2d 1096 (2007).
In the present case, the court considered the statutory factors set forth in General Statutes § 46b-82(a). As noted before, the court does not find that defendant has any additional earning capacity, other than the social security disability payments she is receiving. Additionally, the court does find that husband does have a significant earning capacity and greater likelihood to generate income in the future, especially given defendant’s age and lack of health limitations. Accordingly, the court determines that an award of alimony is appropriate and proper in this case. The plaintiff in his proposed orders also concedes that alimony is also appropriate in this case.
Given the length of the marriage, the court believes that alimony should terminate upon the death of the defendant or at plaintiff’s normal retirement age, as set by the social security administration at the time of judgment, and that the same is fair and equitable. Further, said alimony may be suspended, reduced or terminated in the event of the defendant’s remarriage or if the plaintiff loses his employment, through no fault of his own, or suffers a significant reduction in his earning from employment, again through no fault of his own. Said remarriage by defendant, plaintiff’s retirement, loss of job, through no fault of his own, or significant reduction in income from employment, again through no fault of his own, shall be considered a substantial change in circumstance for the purpose of modification. Pursuant to General Statutes § 46b-86 said alimony may be suspended, reduced, or terminated during any times when the plaintiff is not gainfully employed through no fault or actions of his own. Additionally said alimony may be suspended, reduced or terminated in the event the defendant cohabits with another person, other than the parties’ daughter.
General Statutes § 46b-86(a) provides in pertinent part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party ..."
General Statutes § 46b-86(b) provides in pertinent part: "In an action for divorce, dissolution of marriage, legal separation or annulment brought by a spouse, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other spouse, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party."
Based on the party’s respective incomes, the court determines that alimony should be paid at the rate of $700 per week from the plaintiff to the defendant. The court notes that said amount is less than the $950 per week sought by the defendant, but is greater than the $500 proposed by the plaintiff.
Medical Insurance Coverage
The issue of maintaining medical insurance for the defendant is critical given her health concerns. The court heard testimony from wife that, given husband’s time in the service and the length of their marriage, she will continue to receive Tricare medical coverage. Should wife become ineligible for Tricare, that shall also constitute a substantial change in circumstance for the purposes of alimony modification.
Tricare is a health care program of the United States Department of Defense Military Health System. Tricare provides civilian health benefits for U.S. Armed Forces military personnel, military retirees, and their dependents.
Property Distribution
Further the court is guided by a similar analysis as set forth in General Statutes § 46b-81(c), which provides in relevant part that when making any order regarding the distribution of the marital estate, the court should consider several factors. As to property division, "[t]he purpose of [a] property distribution is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of the dissolution." Hornung v. Hornung, 323 Conn. 144, 146 A.3d 912 (2016). See also Blake v. Blake, 211 Conn. 485, 497, 560 A.2d 396 (1989) (same). After considering the statutory criteria set forth in General Statutes § 46b-82 and hearing the history of the parties, the court considers the parties to have equally contributed, even if not by income, to the financial reality of the family including accumulation of assets and accumulation of debt. As the court noted, the life of a military family can be difficult, with the person serving missing time away from the family and working odd hours and locations in the service of our country, while, the spouse remaining at home, shoulders the responsibility of raising the family and managing the family’s affairs and finances alone. Here, this is what happened. Also, the court notes that the defendant, when able, contributed to the family by working at various jobs. Thus, the parties created a family partnership. Accordingly, the court considers it fair and proper to equally divide the major assets, and to make minor adjustment to take into account actions of the parties during the pendency of this action.
General Statutes 46b-81(c) provides: "In fixing the nature and value of the property, if any, to be assigned, the court, after considering all the evidence presented by each party, 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, earning capacity, vocational skills, education, 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."
A. Marital Home
As to the marital home, which is a source of dispute in this case, both parties acknowledge that husband’s name needs to be removed from all liabilities associated with the home (first mortgage and home equity loan). The plaintiff urges the court to order the immediate sale of the home and to equally divide any profits or losses resulting from the sale. Further the plaintiff suggests a mechanism to insure the sale by including automatic reductions in the sales price. The court also notes that the plaintiff resides in Arizona and that much of the preparation for the sale and burden for the same (showings, etc.) falls on the defendant. The defendant on the other hand requests the court order the plaintiff to quit claim the property to her and that she be given five (5) years from the date of judgment to refinance the existing property and if she is then unable to do so, then the property is to be sold. The defendant also seeks any equity realized from the sale to be awarded to her. The court does not consider either position fair or equitable to the parties. While there was testimony that the outstanding loan obligations are impacting the plaintiff’s ability to purchase a new home, the court also found credible the amount of work required to get the property ready for sale and the difficulty the defendant would have in doing so as well as purchasing a new home. The defendant also puts forth that the plaintiff, in contemplation of divorce, decreased the home equity by taking out a home equity line of credit to pay off marital debt. Based on the arguments of the parties, the court finds that it would be fair and equitable for the defendant to have two (2) years to refinance the existing debt on the property so as to remove the husband’s name. The court, as noted above, does not find any equity in the property, having considered the costs of sale as proposed by the defendant, in arriving at that conclusion. The plaintiff has argued that failure to order a sale may result in harm to his credit should wife fail to make any mortgage payments. The same can be cured, however, by an order requiring immediate sale should wife fail to make the payments in a timely manner.
The court does not accept this argument as the defendant cooperated in the loan process, and the martial debt would have remained, thus subject to allocation between the parties, even if there was equity in the home.
B. Retirement Assets
Under all the facts and circumstances and in light of the applicable statutory criteria, and in view of the financial orders in their entirety, the court concludes that it is appropriate, especially given the length of the parties’ marriage, to make an equal division of the parties’ retirement assets. While the plaintiff proposes that only the marital portion of his military pension be divided equally, the court does not agree, especially in light of the difference in the age of the parties and the defendant’s health. The defendant on the other hand proposes that the military pension be divided such that 60% of the pension is distributed to her. The court also does not agree with that proposition in that the court considered the plaintiff’s contribution to the acquisition, preservation, or appreciation of the asset. Accordingly, the court orders the plaintiff to transfer, by way of qualified domestic relations order, 50% of the gross of both his military pension, without any deduction for the VA Waiver or the SBP, and federal employees’ pension (Department of Defense), together with any applicable costs of living adjustments. The parties shall share equally in the costs of the preparation of the qualified domestic relations order. Until said time said qualified domestics relations orders are implemented, the plaintiff shall pay the defendant 50% of the monthly payment he receives directly to defendant, which shall be consider a property distribution and not spousal support.
The court does not allow for the deduction because the plaintiff is being reimbursed for the VA Waiver, and the election for the SBP was made during the course of the marriage.
C. 2017 Tax Refund and Tax Claims
The parties also disagree with the distribution of the 2017 tax refund, with the plaintiff requesting the same be divided equally and the defendant requesting she be allowed to retain the entire amount. The court has considered the arguments proffered by the parties and their suggested relief. Given the plaintiff’s purchase of the automobile, the court awards the defendant the entire tax refund, free of the claim of plaintiff. The plaintiff shall cooperate with the defendant in negotiating the instrument in a timely manner. Further, the plaintiff shall immediately reimburse his daughter for any sums she expanded to satisfy his Arizona tax obligations for the tax years 2017 and for the preparation of the same. Additionally, given that the plaintiff has been paying support that has not been designated as alimony pendent lite, the plaintiff shall be allowed to claim all the mortgage interest and taxes associated with the martial home for the tax year of 2018.
D. Debt Division
The court also considered the testimony of the parties and the evidence presented as to the parties’ financial debt, which is significant, especially given their resources. "A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties’ assets ... [B]ecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances ... Furthermore, 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.) McKenna v. Delente, 123 Conn.App. 146, 162, 2 A.3d 38 (2010). See also Lynn v. Lynn, 130 Conn.App. 319, 328, 23 A.3d 771 (2011).
After consideration of the testimony and the factors set forth in General Statutes § 46b-81, the court determines that an equal division of the marital debt is also fair and reasonable. This determination is consistent with the court’s prior determination that the parties were a partnership. In an effort to ease payment of said debt and simplify things for the parties, the court orders that the plaintiff be responsible for and hold the defendant harmless on the following debts: the joint Citi Card account with a balance of $17,000; the Macy’s account with a balance of $1,547 and the Best Buy Visa with a balance of $4,853. Furthermore, the court orders that the defendant be responsible for and hold the plaintiff harmless on the following debts: the Sears account with a balance of $1,463; the Kohl’s account with a balance of $1,742; the joint Chase Slate account with a balance of $16,000; the Macy’s Am Ex account with a balance of $651; and the JC Penney account with a balance of $1,740. This equates to each party being responsible for approximately $21,000 to $23,000 of marital debt. The court also orders that the parties are responsible for any other individual debt in their own name and they shall hold the each other harmless from any claims as a result of that debt.
E. Personal Property
The court heard minimal conflicting testimony concerning the personal property of the parties, with the plaintiff indicating value and the defendant testified that the furnishings are "worn and dated." The court can make no conclusion relative to the same. Accordingly, each party shall retain the property in their possession free of the claim of other, unless otherwise agreed between the parties.
F. Attorneys Fees
As to attorney fees, General Statutes § 46b-62(a) authorizes the trial court to award attorneys fees in a dissolution action when appropriate in light of the "respective financial abilities" of the parties and the equitable factors listed in § 46b-82. Turgeon v. Turgeon, 190 Conn. 269, 280, 460 A.2d 1260 (1983). "[W]e [have] stated three broad principles by which these statutory criteria are to be applied. First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third, where, because of other orders, the potential obligee has ample liquid funds, an allowance of [attorney’s] fees is not justified." Hornung v. Hornung, 323 Conn. 144, 169-70, 146 A.3d 912 (2016); Turgeon v. Turgeon, supra, 280. Given the asset distribution and income allocation, the court declines to award attorney fees to either party.
ORDERS
A. Dissolution of Marriage
The marriage of the parties is dissolved on grounds of irretrievable breakdown. The parties are declared to be single and unmarried.
B. Medical Insurance
Each party shall be solely responsible for his or her own medical and dental insurance and unreimbursed medical expenses, and shall be responsible for the payment of all premiums and costs associated with such coverage.
C. Life Insurance
To the extent that it is available at reasonable cost, the plaintiff shall maintain the existing life insurance policies, naming the defendant as beneficiary. This order shall be modifiable upon a substantial change in circumstances and the court shall retain jurisdiction for such purpose. The plaintiff shall provide to the defendant in writing, within ninety (90) days of the date of judgment and then on each anniversary of the date of judgment proof of the life insurance coverage he is ordered to maintain.
D. Alimony
Considering the causes of the dissolution of the marriage, the length of the marriage, the parties’ ages, health and station, the amounts and sources of their respective incomes, and the other pertinent factors set forth in General Statutes § 46b-82, the court orders the husband to pay periodic alimony to the wife at the rate of $700 per week. Said alimony shall terminate upon the sooner of the death of the defendant or plaintiff’s normal retirement age, as set by the Social Security Administration at the time of judgment. Additionally, said alimony may be suspended, reduced or terminated in the event the defendant remarries or if the plaintiff loses his employment or suffers a significant reduction in his earning from his job, both through no fault of his own. Said remarriage, retirement, loss of job, or significant reduction in income from employment, as well as wife’s inability to maintain health insurance coverage, shall be considered a substantial change in circumstance for the purposes of modification. Additionally said alimony may be suspended, reduced or terminated in the event the defendant cohabits with another person, other than the parties’ daughter. Said alimony shall be paid by direct deposit or electronic transfer to an account designated by the wife. Said alimony shall be modifiable as to amount but nonmodifiable as to term. No award of alimony is made from the defendant to the plaintiff.
E. Property Settlement
1. Marital Home
The plaintiff shall quit claim all his right, title and interest in the marital home located at 24 Main Street, Somers, Connecticut to the defendant, who shall be responsible for payment of all expenses related to the home, including the first mortgage, the home equity line of credit, taxes, insurance, and maintenance. The wife shall make diligent efforts to refinance the property for the purposes of removing the husband from liability on the existing mortgage and equity line of credit within two (2) years from the date of judgment. If defendant is unable to do so, then the home shall be listed for sale. If prior to refinancing she shall become two or more months in arrears on the monthly mortgage payments, she shall list the property for sale at its fair market value with a MLS real estate agent familiar with real property values in the Somers, Connecticut area. The wife shall accept any bona fide offer within 5% of the listing price unless a higher bona fide offer is made prior to the expiration of such first offer, in which case the wife shall accept such higher offer. If the home is not sold within 45 days of the listing, the price shall be reduced in accordance with the recommendation of the listing agent. Upon the closing of the sale of the property, any and all net proceeds thereof shall belong solely to the wife. In the event of a deficiency, the parties shall be equally responsible for the same. The court shall retain jurisdiction over this matter for purposes of enforcing and effectuating the orders that enter herein with regard to the marital home.
2. Bank Accounts
a. Each party shall retain the bank accounts in his or her sole name as set forth on his or her financial affidavit, free of any claim or interest of the other party.
b. Any joint accounts shall be equally divided and then closed.
3. Automobiles
a. The husband shall retain the 2018 Jeep Wrangler automobile free and clear of any claim by the wife. He shall be solely responsible for all costs associated with the ownership and operation of said vehicle including but not limited to personal property taxes, gas, maintenance, and insurance and he shall indemnify and hold harmless the wife from any liability thereon.
b. The wife shall retain the 2016 Honda CRV and 2013 Honda Crosstour automobile free and clear of any claim by the husband. She shall be solely responsible for all costs associated with the ownership and operation of said vehicle including but not limited to personal property taxes, gas, maintenance and insurance and she shall indemnify and hold harmless the husband from any liability thereon.
c. Within ten (10) days after the date of judgment, each party shall execute and deliver to the other party, at no cost, any and all documents or forms necessary to transfer title or otherwise effectuate the terms of the foregoing provisions regarding automobiles.
4. Other Tangible Personal Property
The parties shall each retain the personal property in their possession free of the claim of other, unless otherwise agreed by the parties.
5. Retirement Assets
a. The husband shall transfer to the wife fifty percent (50%) of his gross military pension benefit valued as of the date of this judgment, together with any cost of living adjustments. Such transfer shall be made by a qualified domestic relations order (QDRO). Any cost associated with said transfer, including the preparation of the QDRO by an attorney agreed upon by the parties, shall be paid 50% by the plaintiff and 50% by the defendant. The court shall retain jurisdiction over this transfer until the QDRO is accepted by the plan administrator as a valid order under the husband’s military pension plan. Until said time said qualified domestics relations orders are implemented, the plaintiff shall pay the defendant 50% of his monthly payment directly to defendant.
b. The husband shall transfer to the wife fifty percent (50%) of his gross Department of Defense pension benefit valued as of the date of this judgment, together with any cost of living adjustments. Such transfer shall be made by a qualified domestic relations order (QDRO). Any cost associated with said transfer, including the preparation of the QDRO by an attorney agreed upon by the parties, shall be paid 50% by the plaintiff and 50% by the defendant. The court shall retain jurisdiction over this transfer until the QDRO is accepted by the plan administrator as a valid order under the husband’s military pension Plan. Until said time the qualified domestics relations orders are implemented, the plaintiff shall pay the defendant 50% of his monthly payment directly to defendant.
c. The plaintiff shall retain all rights to his UTC Employee Savings Plan, free and clear of any claim or right of the defendant.
d. The defendant is assigned 50% from the husband’s 401k Thrift Savings Plan, valued as of the date of this judgment, along with investment gains, and losses thereon, to be transferred to her by a qualified domestic relations order (QDRO). Any cost associated with said transfer, including the preparation of the QDRO by an attorney agreed upon by the parties, shall be paid 50% by the plaintiff and 50% by the defendant. The court shall retain jurisdiction over this transfer until the QDRO is accepted as a valid order under said Plan by the plan administrator.
F. Liabilities
Except as otherwise ordered herein, the following orders shall apply to the liabilities of the parties.
a. The plaintiff be solely responsible for and hold the defendant harmless on the following debts: the joint Citi Card account with a balance of $17,000; the Macy’s account with a balance of $1,547 and the Best Buy Visa with a balance of $4,853.
b. The defendant shall be solely responsible for and hold the plaintiff harmless on the following debts: the Sears account with a balance of $1,463; the Kohl’s account with a balance of $1,742; the joint Chase Slate account with a balance of $16,000; the Macy’s Am Ex account with a balance of $651; and the JC Penney account with a balance of $1,740.
c. Except as otherwise provided herein, each party shall be responsible for his or her own debts and shall hold harmless and indemnify the other party with respect thereto.
G. Restoration of Name
The defendant’s birth name of Jean Magnificent is hereby restored to her.
H. Legal Fees
Each party shall be responsible for the payment of his or her own legal fees.
I. Taxes
The defendant shall receive the entire 2017 tax refund, free of the claim of plaintiff. The plaintiff shall cooperate with the defendant in negotiating the instrument in a timely manner. Further, the plaintiff shall immediately reimburse his daughter for any sums she expanded to satisfy his Arizona tax obligations for the tax years 2017 and for the preparation of the same. Additionally, for the 2018 tax year, the plaintiff shall be allowed to claim all the mortgage interest and taxes associated with the martial home.
J. Miscellaneous
a. Notwithstanding any other provision of these orders, each party shall be responsible for any taxes, penalties, interest, claims, or deficiencies attributable to such party’s own illegal activity or misreporting of income or deductions and shall hold the other party harmless therefrom.
b. For as long as there is any order of alimony, the parties shall annually exchange the first pages of their federal income tax returns and copies of all W-2 and 1099 forms issued to them. This exchange of income information shall take place no later than May 1 of the calendar year following the year for which the returns are due, e.g., the returns and other information for 2018 shall be exchanged by May 1, 2019.
SO ORDERED.