Opinion
No. FA05 4002291-S
July 14, 2006
MEMORANDUM OF DECISION
A three-day trial was held on July 7, 11, and 12, 2006, when the court heard testimony of both parties, considered five exhibits entered into evidence, the financial affidavits, the proposed orders, and arguments from both attorneys for the parties. On July 12th the court interviewed in chambers the two minor children, David Winiarski (d.o.b. 08/27/92) and Patrick Winiarski (d.o.b. 04/08/94) ages thirteen and twelve respectively to assist the court in deciding the visitation issue. Present in chambers were the monitor, Nadine Battiste, the clerk, Michael Criscuolo, and a family relations counselor, Edgardo Figueroa. The court found both minors were of sufficient age and capable to make an intelligent preference on this visitation issue which will be reflective in the visitation hereinafter ordered.
This divorce action was commenced by the plaintiff, (wife) by personally serving a writ, summons, and complaint on the (defendant), husband on February 15, 2005, and filed with the court on February 18, 2005. From the testimony of the parties, the court has jurisdiction of both the marriage and of the parties.
Many of the background facts are not in dispute. The parties were married on February 29, 1992, in Meriden, about fourteen years ago, and had met and courted in Poland before coming to this country. Their ability to speak and understand English was limited, and therefore, Polish interpreters were appointed to assist them.
There are two minor children born to the wife during the marriage, David Winiarski (d.o.b. 08/27/92) and Patrick Winiarski (d.o.b. 04/08/94).
In the plaintiff's financial affidavit, she listed her current net income from working as a medical clerk of $341.95 a week with weekly expenses of $670.56. Her total net assets are listed at $121,111.46. The primary asset is the jointly held marital home with a total equity of $120,000 and $1,111.46 of equity in a 2000 Nissan Altima automobile.
On the defendant's financial affidavit, he listed his current net income from working as a machinist to be $450 a week with $1,066 in weekly expenses. He listed his fifty percent equity in the jointly held marital home at $65,000, $2,000 in personal property, $965 in a bank account and $10,000 in a 401k for total assets of $81,965.
The plaintiff listed $7,562.99 in debts, and the defendant has listed $24,000 on their financial affidavits.
The plaintiff's complaint alleges the cause for the breakdown of the marriage was the defendant's habitual intemperance and intolerable cruelty. The court heard considerable testimony from the plaintiff that the primary cause of the breakdown is that the defendant's excessive drinking of alcohol liquors began in 1996 and continues to the present time. He was drunk on numerous occasions and he physically abused her. In 1997, she filed for a divorce, but after telling her he planned to overcome his alcohol addiction, she withdrew the divorce complaint.
She called the police a number of times for his physical abuse. He was convicted for driving a motor vehicle under the influence of liquor on March 22, 2006 and received a six-month suspended jail sentence and placed on probation for eighteen months. He was also found guilty of creating a public disturbance and the case was disposed of on February 28, 2002. A third arrest was for disorderly conduct and interfering with an emergency call and placed in a family violence program under a limited protective order. The court has taken judicial notice of his criminal record on file in the Superior Court at Meriden.
In his testimony, the defendant admitted drinking alcohol during the marriage, but said he did not imbibe excessively. He has been employed as a maintenance man and as a machinist and has been able to work throughout the marriage.
Based on all the facts, the court finds the defendant was addicted to alcohol, which was the primary cause for the marital breakdown The plaintiff proved the defendant had been habitually intemperate by a preponderance of the evidence pursuant to Connecticut General Statutes § 46b-40(c)(7) and a decree of dissolution shall enter. Dennis v. Dennis, 68 Conn. 186 (1896). Gowdy v. Gowdy, 120 Conn. 508 (1935). The court further finds the marriage has broken down irretrievably pursuant to Connecticut General Statutes § 46b-40(c)(1).
The court will also give some weight to these findings in distributing the assets of the parties. The primary asset for the court to distribute is the jointly held marital residence located at 15 Norton Lane in Cheshire, Connecticut. Both parties contributed in paying the mortgage, taxes, insurance, and related expenses throughout most of the marriage. These parties signed a contract to sell the marital home for $270,000 on June 8, 2006. (Plaintiff's Exhibit 2.) The inspection report cited certain repairs were needed, including the septic system. However, the defendant would not agree to making these repairs and the buyers rescinded the contract. The parties also signed an exclusive listing agreement with Calcagni Associates on April 7, 2006, which expires on October 17, 2006 for a listed sales price of $289,900. (Plaintiff's Exhibit 1.)
The attorneys and the parties orally agreed to list the property forthwith for a sales price of $289,900 in accordance with the listing agreement.
On April 25, 2005, the court (Taylor, J.) accepted a stipulation signed by the parties pendente lite in which the defendant agreed to pay child support of $185 per week and $175 for maintenance of the mortgage and other household expenses. The defendant failed to pay any of the child support or the maintenance expenses as ordered. The attorneys agreed the arrearage was now $14,230, and the court will consider this arrearage as a credit to the plaintiff in distributing the assets.
In distributing property, the court must consider all the criteria set forth in § 46b-81(a)(b) and (c) of the Connecticut General Statutes which in part provides as follows: (a) "At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other." § 46b-81(c) states: (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 trial court has wide discretion in the equitable distribution of the property under the statute. It may assign to either the husband or the wife all or any part of the estate of the other. Jewett v. Jewett, 265 Conn. 669, 682-84 (2003). Bender v. Bender, 258 Conn. 773, 741-42 (2001).
The court has considered all the criteria in § 46b-81(a) and (c) of the Connecticut General Statutes, the testimony of the witnesses, the exhibits in evidence, the financial statements of the parties and the case law. The following orders shall enter.
1.) The Marital Residence at 15 Norton Lane in Cheshire
The property has been listed with Calcagni Associates for $289,900 by agreement of the parties and their attorneys. The defendant shall immediately transfer his one-half interest in this real estate to the plaintiff, and she shall have the sole discretion on accepting a reasonable price, which includes making any necessary repairs to effectuate the sale. All of the customary closing costs, including paying off the mortgage, the broker's sales commission, any repairs made, and related expenses shall be deducted from the sales price, and the net proceeds shall inure to the plaintiff, except she is ordered to pay the defendant $12,500 for his interest in this real estate within ten days from the closing of title and he is to vacate the premises. In the event the defendant wishes to remain in possession, he or his attorney shall notify the plaintiff in writing of his intention to stay. He shall be liable for one-half of the cost to maintain the home as the plaintiff, to wit, the mortgage, taxes, insurance, and utilities and pay his one-half share beginning August 1, 2006 and on the first day of every month thereafter until the closing of title. He shall leave the premises broom clean. Should the defendant fail to pay his share, the plaintiff shall receive a credit at the closing of title. The court reserves jurisdiction of this real estate until the closing of title.
2.) Personal Property
The parties have agreed on the distribution of the personal property.
3.) Bank Accounts and Deferred Compensation
The defendant shall retain his bank account of $965 and his 401k of $10,000, and the plaintiff shall retain any bank or retirement accounts in her name.
4.) Automobiles
The plaintiff shall be entitled to the 2000 Nissan Altima and the defendant to the 2003 Nissan Frontier. They each shall hold the other harmless from any loans or other expenses relative to their automobiles. They also shall cooperate and sign any documents needed to transfer title for these vehicles.
5.) Custody/Visitation
The plaintiff shall have both legal and physical custody of the minor children. The defendant shall have three hours of visitation once a week between 5:00 and 8:00 p.m. He shall refrain from drinking alcoholic liquor before or during this visitation. Once the defendant completes an alcohol abuse program successfully and obtains a written certification, he may file a motion to modify the visitation. Both minors told the court in chambers, they do not want to spend weekends or overnight visitation with him until he has overcome his addiction.
6.) Health Insurance
The defendant shall maintain health insurance for the benefit of the minor children as available through his employment at a reasonable cost. If health insurance isn't available through his employment, the plaintiff shall maintain health insurance as available through her employment at a reasonable cost. Should health insurance not be available through their employment, all medical costs shall be split equally between the parties.
7.) Life Insurance Any life insurance presently in effect on the life of defendant shall be kept in force and the children shall be beneficiaries until they attain 18 years of age or until they have completed high school, whichever is earlier. In the event the defendant does not have any life insurance in effect, he shall obtain as much insurance as is available to him at a reasonable cost, naming the minor children as irrevocable beneficiaries until they reach their majority. 8.) Child Support The defendant husband shall pay child support to the plaintiff of $155 per week pursuant to the Child Support Guidelines. An immediate wage withholding order shall enter.9.) Post-Majority Support
The court shall retain jurisdiction pursuant to § 46b-56c C.G.S. of post-secondary education orders.
10.) Alimony
Neither party shall receive alimony from the other and each fully understand by not receiving alimony as of the date of dissolution, they are fully barred from such future claim as to alimony.
11.) Liabilities
All liabilities listed on both parties' financial affidavits shall be paid by said parties and hold the other harmless from any liability.
12.) Attorneys Fees
The plaintiff has incurred $10,000 in legal fees in bringing this action. The court has considered the criteria in § 46b-62 C.G.S. and orders the defendant to pay the law firm of Shea and Cook, Esq. $3,000 from his share of the proceeds from the sale of the marital residence within ten days from the closing of title. The attorney for the defendant agreed and waived his right to a hearing. In the event, the property is not sold within six months, the defendant shall pay the $3,000 from his 401k.