Opinion
No. FA04-0351704 S
December 9, 2005
MEMORANDUM OF DECISION
This is an action for dissolution of marriage and other relief brought to the judicial district of Danbury. Many of the facts that give rise to this action are not in dispute. The plaintiff, whose birth name was Cynthia Velasco, and the defendant were married on September 11, 1982 at Arlington, Virginia. The plaintiff has resided continuously in the state of Connecticut for at least twelve months immediately prior to the date the complaint was filed. The marriage between the parties has broken down irretrievably without any reasonable prospects of reconciliation. There are two children issue of this marriage: Christine Marie Wright, born July 27, 1985, and Scott Alexander Wright, born December 20, 1989. No other children have been born to the plaintiff wife since the date of marriage of the parties. Neither party has received state assistance.
From the evidence presented the court finds that each party is equally at fault for the breakdown of the marriage.
The plaintiff was born on November 16, 1953.
The plaintiff has graduated from high school and has taken some business courses at the Virginia Community College in 1973 or 1974.
She was involved in an automobile accident in January 2003 where she injured her hands, arms, neck, wrists and shoulder. She still has problems with her hands and picking up some objects. She has suffered from migraine headaches since she was a child. The headaches will occur approximately four times a month and last for up to seven days with the average headache lasting for three days. She uses aspirin and takes injections. She has been taking injections for six years for her headaches twice a month by injecting herself. She has a problem with the use of her hands doing normal household activities. Her shoulder problems affect strength and reaching.
The plaintiff intends to relocate from the Danbury area. She has not made a final decision as to where she will move to. During the years of the parties' marriage the plaintiff was responsible for caring for the interior and exterior of the homes they lived in. She did housework including ironing. She handled the lawn including trimming, edging and mulching. She did the grocery shopping, prepared the meals and handled the family financing. She was responsible for caring for the parties' two children.
The plaintiff is currently unemployed. She has dividend income of $19.22 weekly. She has liabilities totaling $44,365.40 consisting of a debt to D. Sommers for attorneys fees in the amount of $31,106.19, Mrs. Velasco (plaintiff's mother) for attorneys fees and hotel in the amount of $4,000, GM Mastercard in the amount of $300, Attorney Christine Ellis in the amount of $742.50, and Attorney Grover through December 2, 2005 in the amount of $8,216.71. The total reasonable counsel fees incurred on behalf of the plaintiff amounts to $32,556.12 plus paralegal fees of $1,875 plus disbursements of $2,928.50. She has bank accounts totaling $34,737 consisting of a GMAC demand note (money market) in the amount of $2,711. This account is for the minor child Christine. She has a second GMAC demand note which is a money market account for the minor child Scott in the amount of $16,950. She has a third GMAC demand note money market account in the amount of $13,467 from the proceeds of her personal injury lawsuit and a New Mil Bank checking account in the amount of $1,609.
The plaintiff also has 540 Verizon stocks with a total value of $16,696.50 and 1,125 shares of Norfolk Southern with a total value of $40,983.75.
The defendant was born on June 20, 1952.
The defendant is employed by General Motors as an assistant regional manager. He has gross weekly income of $2,162 less deductions. He also has other income consisting of EVP pay (enhanced variable pay) in the gross weekly amount of $128 less deductions and Flex compensation in the gross weekly amount of $37 less deductions.
The defendant graduated from the University of Virginia with a degree in science prior to the marriage of the parties. He obtained a master's degree during the marriage at Delaware College in the field of business.
The defendant has a joint checking account with the plaintiff at the New Mil Bank with a balance of $248, a New Mil Bank money market account with a balance of $429, and a GMAC demand note money market with a balance of $2,728. He has three life insurance policies, one through his employment in the face amount of $784,000, a second through Equitable in the face amount of $20,000 and a cash surrender value of $6,000, and a third for accidental death in the face amount of $500,000. He has a Fidelity IRA with a balance of $47,501, a Fidelity 401k with a balance of $279,287, and his pension plan through GM from which he can receive $2,725 monthly commencing at age 65.
The parties are the joint owners of a family home located at 4 Muyrwood, Brookfield, Connecticut. It has a fair market value of $772,000 and a mortgage with a balance of $159,756. The total equity is $612,235.
The parties are the joint owners of a 2004 Buick with a fair market value of $18,000 and no loan balance.
The plaintiff presently operates that vehicle. It was purchased for approximately $26,000 to $27,000 from joint finds. The defendant has the free use of a motor vehicle through his employment.
After the defendant's father died on April 18, 2000, the defendant received from his life insurance the amount of $62,703. Fifty thousand dollars of that sum was used to pay down the mortgage on the family home with the balance used for miscellaneous expenditures.
The defendant's father established a trust on January 23, 1998. The relevant trust provisions are as follows:
ARTICLE I
CREATION AND DISPOSITION OF TRUST
B. Trust During My Lifetime.
During my lifetime my Trustee shall accumulate the income and retain the principal of the trust except as I may otherwise direct. If at any time, in the opinion of my attending physician together with the concurrence thereto from my wife, TERSIE R. WRIGHT, (all of which shall be in writing and filed with the trust records), I am unable to so direct, my Trustee may pay income or principal as my Trustee may deem necessary to provide for my support and health and to pay my obligations, including the support of my wife.C. Disposition at My Death.
1. My Trustee shall distribute all stock of Wright's Buick, Inc. equally to my sons DEWEY C. WRIGHT, JR. and ERNEST A. WRIGHT. If either DEWEY C. WRIGHT, JR. or ERNEST A. WRIGHT is then deceased, all stock of Wright's Buick, Inc. shall be distributed to the survivor of DEWEY C. WRIGHT, JR. and ERNEST A. WRIGHT.
2. If my wife survives me, my Trustee shall divide the remaining assets held at my death and other assets received by my Trustee by reason of my death into the Marital Trust and the Family Trust as directed in Article V. If my wife does not survive me, all such assets shall constitute the Family Trust. My Trustee shall administer the Marital Trust and the Family Trust as directed in Articles II and III, respectively.
ARTICLE II
MARITAL TRUST
A. During My Wife's Lifetime:
My Trustee shall pay the net income of the Marital Trust to my wife during her lifetime in quarterly or more frequent installments and may pay to her as much of the principal as my Trustee may deem appropriate for her support and health.B. Distributions at my Wife's Death:
At my wife's death my Trustee shall distribute to my wife's estate any accrued or undistributed income of the Marital Trust and the sum needed to pay taxes attributable to the Marital Trust as later provided. My Trustee shall add the remaining principal to the Family Trust.
ARTICLE III FAMILY TRUST A. During my Wife's Lifetime.
My Trustee shall pay the net income of the Family Trust to my wife during her lifetime in quarterly or more frequent installments and may pay to or for her benefit as much of the principal of the Family Trust as my Trustee may deem necessary for her support and health.B. Distribution at Wife's Death.
Upon the death of the survivor of my wife and me my Trustee shall:
1. Distribute the sum of $10,000.00 to each of my then living grandchildren.
2. Divide the remaining Principal and any undistributed income of the Family Trust (including any assets received from the Marital Trust or other sources) into equal shares, one share for each then living child of mine and one share for each deceased child having a descendant then living. My Trustee shall distribute the share of each living child to such child, and the share of any child who is deceased on the Division Date to the child's then living descendants.
ARTICLE IV
INTERESTS VESTING IN CERTAIN BENEFICIARIES
C. Vesting Not Postponed.
The provisions of this Article shall not postpone vesting of any interest in the beneficiary.
ARTICLE V
DIVISION INTO MARITAL TRUST AND FAMILY TRUST
A. Assets Subject to Division.
If my wife survives me, my Trustee shall divide the principal of the assets held at my death and other assets received by my Trustee that are included in my gross estate for federal estate tax purposes after payment of any charges under Article VI (collectively the "Trust Assets") into the Family Trust and the Marital Trust in the manner described in this Article.B. Marital Trust Pecuniary Amount.
My Trustee shall transfer to the Marital Trust assets selected by my Trustee having a value at the time of transfer equal to (1) the smallest amount of the unlimited marital deduction allowable to my estate that would result in no federal estate tax payable at my death (or the least possible tax payable) after taking into account all other deductions, the unified credit and the credit for state death taxes (to the extent the use of such credit does not increase state death taxes) finally allowed to my estate for federal estate tax purposes, reduced by (2) the aggregate value as finally determined for federal estate tax purposes of all property and interests in property included in my gross estate that qualify for the marital deduction and do not pass as part of the Marital Trust. I intend by this Article to create a pecuniary amount formula and not a fractional share formula.C. Allocation of Assets.
My Trustee shall not transfer to the Marital Trust any property or proceeds of property that cannot qualify for the marital deduction. The pecuniary amount of the Marital Trust described in paragraph B shall be decreased to the extent there is insufficient property or proceeds of property qualifying for the marital deduction. To the extent possible my Trustee shall not allocate to the Marital Trust any assets upon which a foreign death tax is payable.
D. Family Trust.
The Family Trust shall consist of the remaining Trust Assets.E. Tax Elections.
I realize the value of the Marital Trust may be affected by the exercise of certain tax elections made by my Executor.F. Assets Not Subject to Division.
My Trustee shall segregate and add to the Family Trust all assets that are not included in my gross estate, and such assets shall be in addition to the remaining Trust Assets constituting the Family Trust.G. Allocation of Income.
Income earned on the Trust Assets before the division (and income on assets used to make the payments under Article VI) shall retain its character as income and a proportionate share shall be allocated to the Marital Trust. Income earned on assets that are not included in my gross estate shall retain its character as income in the Family Trust.
ARTICLE IX
MISCELLANEOUS PROVISIONS
B. Spendthrift Provisions.
To the extent permitted by law, the principal and income of any trust shall not be liable for the debts of any beneficiary or subject to alienation or anticipation by a beneficiary, except as otherwise provided.I. Situs, Multiple Counterparts.
This agreement is made or delivered in Virginia and shall be governed by its laws.
In Tremaine v. Tremaine, 235 Conn. 45, 663 A.2d 387 (1995), in addressing a trust that provided that the validity of the trust created and the validity, construction, and interpretation of the provisions contained in the trust instrument shall be determined in accordance with the laws of the State of Ohio, the Tremaine court at pages 60-61 stated in part as follows:
Before addressing the merits of the defendant's claim, we note that the trust instrument specifies that "[t]he trusts created by this instrument shall be deemed to have their situs in the State of Ohio. The validity of the trusts created hereunder and the validity, construction and interpretation of the provisions contained in this instrument shall be determined in accordance with the laws of the State of Ohio from time to time in force." Accordingly, our construction of the trust instrument must be guided by Ohio law.
Footnote 16 states:
Although our construction of the trust agreement is governed by the law of the state of Ohio, the ultimate question of whether the value of the entire trust corpus was property attributable to the defendant's estate must be determined under the law of this state.
Therefore, this court looks to the law of the state of Virginia for the construction of the provisions of both trusts and looks to the law of the state of Connecticut as to whether the value of the trust corpus is properly considered to be the defendant's estate for property division purposes.
The threshold issue before the court is the construction of the spendthrift trust under Virginia law.
In Alderman v. Virginia Trust Company, 181 Va. 497, CT Page 15866 25 S.E.2d 333 (1943), the court stated in part as follows:
Spendthrift trusts were not valid in Virginia prior to the revision of our Code in 1919. Theretofore, we followed the English rule, making the equitable estate of the cestui que trust liable for his debts to the same extent as if he were the legal owner thereof . . .
[l] Section 5157 of the Code of 1919 is the same as the present section 5157 of the Code of Virginia, 1942, (Michie). The last clause of that section, printed below in italics, was added in 1919 to section 2428 of the Code of 1887. Since its addition, for the purposes prescribed and within the specified pecuniary limitations of the amended statute, spendthrift trusts have been recognized as valid in this State . . .
It is evident that the will of Dr. Alderman was prepared by a skilled, legal draftsman, and that it needs no interpretation by the court. It speaks for itself. Its languages, terms, and provisions are clear and express. The intent and purpose of the testator are equally clear, distinct, and unambiguous. We need only give to the words of the will their ordinary meaning. It is not necessary to go beyond the will to ascertain the testator's intent and purpose.
In Jackson v. Fidelity and Deposit Co., 269 Va. 303, 608 S.E.2d 901 (2005), the court stated in part as follows:
Without approval by a court or authority under Gertrude's will, Bradford took estate funds to invest in his personal business, a breach of his fiduciary duties as administrator. Bradford failed to file fiduciary accountings as required by law or return the misappropriated funds to the estate. The Commissioner of Accounts for the City of Richmond filed a petition to remove Bradford as administrator of Gertrude's estate and to forfeit the bond . . .
[1-3] A spendthrift trust is a trust created for the maintenance or benefit of a beneficiary which is secured against his improvidence, placing it beyond the reach of his creditors . . . In Virginia, spendthrift trusts are authorized by statute. See Code § 55-19 . . .
In Sheridan [Sheridan v. Krause, 161 Va. 873, 172 S.E. 508 (1934)], we confirmed that this action of the General Assembly established the enforceability of spendthrift trusts so that the assets of a trust beneficiary, while in the hands of the trustee, were shielded from his creditors within the limits of the statute. We declared that spendthrift protection was to be liberally construed . . .
Code § 55-19, the successor to Sections 2428 and 5157, has expanded the remedial application of spendthrift trusts in that it contains no monetary limit or limitation "for the benefit of the beneficiaries." The General Assembly has, however, specifically limited spendthrift trust protection in several enumerated circumstances set out in the statute. Thus a beneficiary's debts in conjunction with an employee benefit plan, for child support, public assistance and medical assistance are enforceable by creditors against the beneficiary's trust interest in the hands of the trustee regardless of any spendthrift provisions the trust contains . . .
Thus, because the statute specifically lists exceptions to spendthrift protection, those exceptions are the only ones allowed by law . . .
The former monetary limit on spendthrift trusts under Code § 55-19 was abrogated in 2001, the year after Gertrude died . . . In Virginia, the law applicable at the date of the testator's death is applied in interpreting the will . . . There is no issue in the current appeal that is affected by the provisions of Code § 55-19 as amended after Gertrude's death, and the law in effect at the date of her death is construed in this appeal.
(Emphasis provided.)
The defendant argues in his brief that there is no limit as to the amount that can be protected by a spendthrift trust based on current Virginia law. The court is not persuaded by that argument. The Jackson case states that the monetary limit is determined on the date of the testator's death. The date of the testator's death was April 18, 2000. The monetary limit on spendthrift trust in April of 2000 was one million dollars.
The provisions of both the marital trust and the family trust are clear and express the intent and purpose of the testator. During his wife's lifetime the net income of the marital trust was to be paid to her in quarterly or more frequent installments and so much of the principal as the trustee may deem appropriate for her support and health. Upon her death the trustee is to pay to her estate any accrued or undistributed income and any sum needed to pay taxes attributable to the marital estate. Any remaining balance in the marital trust is to be added to the family trust. Under the terms of the family trust the trustee is to pay the net income to the wife during her lifetime and may pay to or for her benefit as much of the principal of the family trust as the trustee may deem necessary for her support and health. Upon the death of the wife, $10,000 is to be paid to each of the then living grandchildren and the remaining principal and any undistributed income from the family trust was to be divided into three equal shares with one share for each of the then living child of the said settlor and one share for each deceased child having a descendant then living. The trustee is to distribute the share of each living child to such child and the share of any child who is deceased on the division date to the child's then living descendants. The one million dollar limitation of principal and income of any trust shall not be liable for the debts of any beneficiary or subject to alienation or anticipation by a beneficiary. The provisions of the trust are not to postpone vesting of any interest in a beneficiary. Therefore each beneficiary has a vested interest as of the date of death of the testator. Further, under Jackson v. Fidelity, supra, the assets of the trust while in the hands of the trustee are shielded from the beneficaries' creditors with in the limits of the statute . . .
The remaining question is whether the value of the defendant's interest in the trust is properly considered to be the defendant's estate for property division purposes. This court looks to Connecticut law to determine the question of whether the value of the defendant's interest in the trust is properly attributable to him for purposes of division of assets.
In Eslami v. Eslami, 218 Conn. 801 (1991), the issue was whether the failure to consider the wife's interest as a beneficiary of her deceased father's estate, which estate had not been settled at the time of trial was error. In affirming the trial court's decision, the Eslami court stated in part as follows:
In Rubin v. Rubin, 204 Conn. 224, 232, 527 A.2d 1184 (1987), this court held that a contingent remainder interest in an inter vivos trust held by a spouse did not constitute" property" subject to assignment by the court to the other spouse pursuant to General Statutes 46b-81 in rendering a judgment dissolving the marriage . . .
Although the interest involved here had vested in the wife at the time of trial, the court could reasonably have concluded that uncertainty as to the amount she would eventually receive from her father's estate militated against consideration of that interest for the purpose of the financial awards. [Emphasis provided.]
In this case the court finds that there is not uncertainty as to the amount the defendant would eventually receive from the trust. From the evidence presented the court finds that the value of the defendant's interest in the trust is $562,307. One of the trust assets consists of a building that receives a total annual rental of $480,000. One-half of that amount is allocated to the trust and the other half goes directly to the defendant's mother as she was a half-owner in the building on the date of the testator's death. Therefore she receives a total annual income from that building of $480,000. There are real estate taxes allocated to the trust of $17,000 and repairs, insurance and miscellaneous of $12,500 annually with the defendant's mother, individually, paying real estate taxes of $17,000 and repairs, insurance and miscellaneous of $12,500 annually.
In Krafick v. Krafick, 234 Conn. 783 (1995), the principal issue was whether vested pension benefits constitute property for the purposes of equitable distribution pursuant to General Statutes § 46b-81. In holding that vested pension benefits constitutes property for purposes of equitable distribution, the court stated in part as follows:
There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is proper within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution). The present case concerns the proper treatment of the defendant's vested pension under all three stages of our equitable distribution scheme . . .
Interpreting the term property broadly is also consistent with the purpose of equitable distribution statutes generally. It is widely recognized that the primary aim of property distribution is to recognize that marriage is, among other things, "a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute — directly and indirectly, financially and nonfinancially — the fruits of which are distributable at divorce." (Emphasis added.)
Classifying vested pension benefits as property does not run afoul of the limitation, recognized in the context of inheritance and trust interests, that § 46b-81 applies only to presently existing property interests, not "mere expectancies." See Bartlett v. Bartlett, 220 Conn. 372, 380-81, 599 A.2d 14 (1991); Rubin v. Rubin, 204 Conn. 224, 236-39, 527 A.2d 1184 (1987). An expectancy is only "the bare hope of succession to the property of another, such as may be entertained by an heir apparent." Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). As we have stated, " [s]uch a hope is inchoate. It has no attribute of property and the interest to which it relates is at the time nonexistent and may never exist." (Emphasis added.) Id. "The expectancy may never be realized because of diminution of the donor's wealth or a change in the planned disposition of his property." Rubin v. Rubin, supra, 235. "The term expectancy describes the interest of a person who merely foresees that he might receive a future beneficence . . . [T]he defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence." (Citations omitted; emphasis in original.) In re Marriage of Brown, supra, 15 Cal.3d 844-45. As we have stated, vested pension benefits represent an employee's right to receive payment in the future, subject ordinarily to his or her living until the age of retirement." The fact that a contractual right is contingent upon future events does not degrade that right to an expectancy." [Emphasis provided.]
In this case the defendant has an enforceable right to his beneficence. He has a vested interest in the trust with the only requirement being that he survive his mother. There is a very strong probability that he will survive his mother in view of their difference in ages. The defendant's mother is 80 years old while the defendant is 53 years old. The interest of the defendant in the family trust is as vested as the interest in the pension plan in Krafick. Both involve the right to receive payment in the future subject to living until a certain period of time. As stated in Simmons v. Simmons, 244 Conn. 158, 708 A.2d 949 (1998), the defining characteristic of property for purposes of § 46b-81 is the present existence of the right and the ability to enforce that right. In this case the defendant has a vested interest in the family trust which constitutes a present existence of the right and he has the ability to enforce this right. He has a present existing and enforceable right notwithstanding that it is contingent on certain factors such as his surviving on the date of his mother's death. Lastly, this case differs from Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987), in that in Rubin the interest in question was a contingent remainder interest in an inter vivos trust while in this case there is a vested remainder interest in the family trust. This court therefore concludes that it has the right to assign to the wife all or any part of the estate of the defendant arising from his interest in the family trust.
This court is aware of the fact that under Bartlett v. Bartlett, 220 Conn. 372, 599 A.2d 14 (1991) that in the event the defendant's interest in the family trust is not to be considered as an asset subject to division at this time, that after his mother dies the alimony order entered herein would be subject to modification. The Bartlett court stated in part as follows:
Our conclusion that the trial court should have considered the defendant's vested inheritance for purposes of alimony modification comports with our recent decision in Eslami v. Eslami, 218 Conn. 801, 591 A.2d 411 (1991). In Eslami, the trial court failed to consider the plaintiff wife's vested interest in her father's estate, the assets of which she had not yet received, because the value of her interest could not be determined. Evidence at the trial showed that her brother had initiated a will contest which was still pending and that the value of her interest depended upon the resolution of that litigation.[fn 10] We affirmed the judgment of the trial court, noting that "[a]lhough the interest involved here had vested in the wife at the time of trial, the court could reasonably have concluded that uncertainty as to the amount she would eventually receive from her father's estate militated against consideration of that interest for the purpose of financial awards." Id., 807. We also indicated that modification of the alimony award would be appropriate when the value of her interest became ascertainable. Id., 808.
In the case now before us, the trial court never reached the issue of valuation of the inheritance, as the trial court in Eslami did, because it declined to consider the defendant's inheritance at all in ruling on the motion to modify alimony. The court's mistaken belief that the inheritance had not yet vested because the defendant had not yet received the proceeds prompted the court to deny the motion without attempting to ascertain the value of the inheritance. Had the court made the appropriate inquiry, it would have had discretion to resolve the quest on in any number of ways. For example, if the court had been able to ascertain the value of the defendant's interest with reasonable certainty, it could have entered an order in which the increase in the award of periodic alimony would accrue until such time as he actually received the inheritance or was otherwise able to pay his obligation. Such an order would have extended the benefit of the modification to the plaintiff and would have simultaneously protected the defendant from the threat of being held in contempt for disobeying a modified alimony order that might have exceeded his current financial ability to meet it. See Rubin v. Rubin, supra, 237. If, on the other hand, the court had not been able to make a proper valuation of the inheritance, it could have done what the trial court in Eslami effectively did: postpone consideration of the inheritance until such time as its value could be ascertained with reasonable certainty. Because the court never reached the issue of valuation, however, we cannot uphold its decision to deny the motion.
The plaintiff had the following assets at the time of the parties' marriage: (1) credit union account with a balance of $1,794.72; (2) Paine Webber account with a balance of $10,308.03 and (3) stock in Verizon and Norfolk Southern stock.
The defendant purchased ten acres of land in Virginia for $30,000 on September 15, 1976, approximately six years before the parties married. The present value of the property is $285,000.
On the date the defendant purchased the Virginia land he assumed a mortgage with an outstanding balance of $24,559.14. The balance of the purchase price was paid by a $5,000 down payment by the defendant. Between December 1982 and 1994, the total amount of the payments that were made to discharge the mortgage amounted to $29,091.
During the calendar years of 2000 through 2004, the parties filed joint income tax returns. The following table is taken from those tax returns.
2000 2001 2002 2003 2004
Wages 93,147 89,963 90,133 110,540 110,549 Taxable interest 5,148 5,342 4,220 4,003 2,647 Ordinary dividends 1,392 959 474 1,082 1,186 Taxable refunds 2,465 2,084 2,827 2,327 2,298 IRA distributions 6,453 Total Income 108,605 98,348 97,654 117,952 116,680 Adjusted Gross Income 114,952 112,680 Income tax 12,675 7,938 8,990 11,951 Child tax credit 1,000 1,200 850 Tax on IRA 645 Total Tax 12,320 7,938 8,990 11,951 19,844 Federal income tax withheld 16,137 13,500 12,425 16,359 15,205 Total payments 16,137 13,500 12,425 16,359 15,205 Overpayment 3,817 5,562 3,435 4,408 4,361
This court has considered the provisions of § 46b-82 regarding the issue of alimony, and has considered the provisions of § 46b-81(c) regarding the issue of property division, and has considered the provisions of § 46b-62 regarding the issue of attorneys fees, and has considered the provisions of § 46b-56 regarding the issues of custody and visitation, and has considered the provisions of § 46b-56(c) regarding the issue of educational support orders, and has considered the provisions of § 46b-84 as well as the child support guidelines regarding the issue of support. The court enters the following orders:
ORDERS A. BY WAY OF DISSOLUTION
1. The marriage between the parties is dissolved and each party is declared to be single and unmarried.
B. BY WAY OF SUPPORT
1. The plaintiff is currently unemployed. The court is ordering support in the amount of $1 per year for the sole purpose of ensuring that it is modifiable. She is to notify the defendant in writing within ten (10) days of obtaining employment including the name and address of the employer and her weekly wages.
C. BY WAY OF CUSTODY AND VISITATION
1. The defendant is awarded sole legal custody of the minor child, Scott A. Wright, and is designated as the primary residential parent. The plaintiff is awarded reasonable, liberal and flexible rights of visitation.
D. BY WAY OF HEALTH INSURANCE AND LIFE INSURANCE
1. The defendant is to maintain health insurance for the minor child. Any unreimbursed medical, dental, optical, orthodontic, psychological and/or prescriptive drug expenses incurred on behalf of the minor child shall be divided as follows: the plaintiff is to pay 30 percent and the defendant is to pay 70 percent.
The defendant's employer provides him with group hospital and medical insurance coverage and the children, Christine and Scott, are presently insured. The defendant will maintain such hospital and medical insurance coverage with respect to such children as long as his policy from employment permits and he has obligations with respect to the children pursuant to college expenses.
All claims shall be submitted to the insurer for payment in accordance with the requirements of the plan; however, the following shall control the handling of funds and claims between the parties: Pursuant to § 46b-84(e), (1) the signature of the custodial parent or custodian of the insured dependent shall constitute a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the medical services, to the custodial parent or to the custodian, (2) neither parent shall prevent or interfere with the timely processing of any insurance reimbursement claim and (3) if the parent receiving an insurance reimbursement payment is not the parent or custodian who is paying the bill for the services of the medical provider, the parent receiving such insurance reimbursement payment shall promptly pay to the parent or custodian paying such bill any insurance reimbursement for such services. For purposes of subdivision (1), the custodial parent or custodian is responsible for providing the insurer with a certified copy of the order of dissolution or other order requiring maintenance of insurance for a child provided if such custodial parent or custodian fails to provide the insurer with a copy of such order, the Commissioner of Social Services may provide the insurer with a copy of such order. Such insurer may thereafter rely on such order and is not responsible for inquiring as to the legal sufficiency of the order. The custodial parent or custodian shall be responsible for providing the insurer with a certified copy of any order which materially alters the provision of the original order with respect to the maintenance of insurance for a child. If presented with an insurance reimbursement claim signed by the custodial parent or custodian, such insurer shall reimburse the provider of the medical services, if payment is to be made to such provider under the policy, or shall otherwise reimburse the custodial parent or custodian.
2. a. The defendant shall name the plaintiff as beneficiary on an unencumbered life insurance policy insuring his life for at least $390,000 so long as he is obligated to pay alimony to the plaintiff. The defendant shall furnish the plaintiff, on her request, but no more than once annually, on the first business day in July, proof that he is insured in the specified amount and that the beneficiary of said insurance is as required herein.
b. The defendant shall at all times maintain life insurance in the net amount required herein and shall pay all premiums, dues and assessments due thereon to be paid to maintain the insurance on his life and shall make arrangements for all premium notices and premium receipts to be sent to the plaintiff. In the event that he shall fail to pay any of said premiums, the plaintiff shall have the option to pay such premiums and the defendant shall be indebted to pay the plaintiff in the amount of the sums so paid. If the plaintiff pays any such premiums in accordance with the provisions herein, the defendant shall reimburse her in the amount so paid on or before the first day of the first month following any such payment.
c. In the event that said insurance shall not be maintained in effect at the time of the defendant's death and in the event the defendant has not made a bequest in his will to the plaintiff in the amount required under 2a and 2d, then the shortfall or the full amount or the amount required under 2a and 2d, as the case may be, shall constitute a charge upon the defendant's estate and an indebtedness of the estate of the defendant in favor of the plaintiff to the extent of the provisions herein.
d. The defendant has the right to reduce the life insurance by $30,000 annually commencing January 1, 2007, and annually thereafter.
E. BY WAY OF EDUCATIONAL SUPPORT ORDERS
1. In accordance with the provisions of § 46b-56c, the court finds that as a matter of fact that it is more likely than not that the parents would have provided support for their daughter, Christine Marie Wright, for higher education if the family were intact. The court has considered all of the relevant circumstances found in § 46b-56c(c) and enters an educational support order for everything included in § 46b-56c(f) with the plaintiff paying 30 percent and the defendant paying 70 percent. The payments are to be made directly to the institution or school attended by the daughter. All of the provisions of § 46b-56c are applicable including but not limited to age 23 and the provisions of § 46b-56c(e). The plaintiff is to first expend the $2,711 that she holds in a money market account for Christine for those obligations required to be paid by parents under the statute prior to the time the parties are then to pay their respective 30 percent and 70 percent share of those expenses.
Each party has agreed that pursuant to § 46b-56c that the court should retain jurisdiction at this time for the entry of an order pertaining to educational support for the minor child Scott and the court therefore retains jurisdiction on that issue.
The court orders that in the event the minor child Scott enrolls in college that the money market fund being held for his benefit with a present balance of $16,950 be paid for the purposes required for college expenses before the parties are required to pay whatever amounts they may be ordered to pay. In the event the full money market account for Scott has not been expended prior to his reaching age 23, then in such event the court orders that whatever balance is remaining in that money market account be divided equally between the parties.
F. BY WAY OF PROPERTY ORDERS I. MARITAL RESIDENCE
(1) Each party shall have the option to buy out the other party's share in the family home. In the event both parties exercise the option, then the option becomes null and void. The purchase price for the home is to be arrived at as follows: From the fair market value of $772,000 is to be deducted the outstanding balance of the first mortgage and a 3 1/2 percent fictional closing cost. The purchase price is to be one-half of the balance. The party seeking to exercise the option must give written notice to the other party by registered mail return receipt of the exercise by December 31, 2005, and complete the purchase by February 1, 2006. The completion of the purchase must include the extinguishment of the existing first mortgage or obtaining the release of the other party from any liability under the first mortgage. The party whose interest is to be transferred under the option to purchase shall execute a quitclaim deed simultaneously with the payment and refinance and/or release. In the event only one party elects to exercise the option to purchase the interest of the other party and does not complete the transaction by February 1, 2006, then in such event the party who exercised the option is to pay as liquidated damages to the other party the sum of $10,000 from that party's share of the family home that is to be received from the sale of the family home.
(2) In the event neither party has exercised the option to purchase or the purchase has not been completed by February 1, 2006, then in either event the parties shall immediately execute a listing agreement listing the property for sale at a price of $800,000. The parties shall continue to execute any listing agreement necessary to keep the property on the market.
If the property remains on the market three (3) months, the parties will confer to determine whether a new listing price should be set. The parties shall continue to re-examine the listing price every ninety (90) days. The parties will cooperate to facilitate the property's prompt sale and will continue to have the property listed for sale and the provisions of the listing agreement will provide for a lock box. In the event the parties are unable to agree on a submitted offer, then they shall accept any cash offer within 3 percent of the then listing price.
Upon the sale of the property, the following shall be paid to determine the net proceeds of the sale:
a. first mortgage
b. state conveyance tax
c. town conveyance tax
d. real estate taxes
e. attorneys fee to close
f. realtor's commission
g. other customary closing expenses
The balance of the net proceeds is then to be divided equally between the parties. Any mortgage escrow under the terms of the joint mortgage obligation shall be divided equally between the parties.
The defendant shall be responsible for paying the monthly installments on the first mortgage, taxes and homeowner's insurance until title is transferred between the parties or to a third party. The defendant shall be entitled to exclusive possession of the property within thirty (30) days of paying the plaintiff the buyout amount in the event he completes his exercise of the action to purchase. The plaintiff shall be entitled to exclusive possession of the property within thirty (30) days of paying the defendant the buyout amount in the event she completes the exercise of her option to purchase. In the event the property is sold to a third party, the parties shall have joint possession of the property until closing.
(3) The court retains jurisdiction over any dispute that may arise involving the sale of this property.
2. VIRGINIA LAND
a. The Virginia land has a present value of $285,000. The property is subject to "rollback taxes" of $11,690. Therefore, the net value of the property is $273,310 ($285,000-$11,690 = $273,310).
b. The defendant has the option to purchase the plaintiff's interest for $136,655. The plaintiff has the option to purchase the defendant's interest for $136,655. In the event both parties exercise the option, then the option becomes null and void. The party seeking to exercise the option must give written notice to the other party by registered mail return receipt of the exercise by December 31, 2005, and complete the purchase by February 1, 2006. The party whose interest is to be transferred under the option to purchase shall execute a quitclaim deed simultaneously with the payment. In the event only one party elects to exercise the option to purchase the interest of the other party and does not complete the transaction by February 1, 2006, then in such event the party who exercised the option is to pay as liquidated damages to the other party the sum of $10,000 from that party's share of the VIRGINIA PROPERTY that is to be received from the sale of the VIRGINIA PROPERTY.
c. In the event neither party has exercised the option to purchase or the purchase has not been completed by February 1, 2006, then in either event the parties shall immediately execute a listing agreement listing the property for sale at a price of $300,000. The parties shall continue to execute any listing agreement necessary to keep the property on the market.
d. The court retains jurisdiction over any disputes that may arise involving the sale of this property.
3. MOTOR VEHICLES
The plaintiff shall be entitled to the 2004 Buick Rendevous, free and clear of any claim by the defendant. The plaintiff shall indemnify and hold the defendant harmless from any liability associated with the automobile. The defendant shall cooperate and execute any and all documents necessary to effectuate a full and complete transfer of the title and registration into the plaintiff's name individually within thirty (30) days.
4. STOCK
The plaintiff's Verizon and Norfolk Southern stock are ordered divided equally between the parties.
5. STOCK OPTIONS
The existing vested and unvested stock options held by the defendant from his employer shall be divided equally between the parties in the following manner:
(a) The allocation of the equal division shall be determined by the total number of shares available for each vesting date.
(b) The parties shall share equally any stock dividends received or tax burden incurred in conjunction with such stock options.
(c) The defendant will hold the plaintiff's interest in the stock options until the plaintiff gives the defendant written authority to exercise.
(d) The defendant shall make his best efforts to effectuate the instructions of the plaintiff within two business days after receipt of her written request to exercise the stock options.
(e) The defendant shall provide to the plaintiff all statements reflecting the exercise of her requested options.
(f) The plaintiff shall be solely responsible for any and all federal and state taxes incurred by the defendant with respect to the exercise of the plaintiff's options which enure to the benefit of the plaintiff pursuant to these terms. The tax shall be calculated by comparing the federal, state and local tax obligations which are imposed upon the defendant as a result of the plaintiff's exercise of the options in the year the exercise occurs with the computation of the defendant's tax obligations had such transactions not occurred in that year. The difference between the two tax computations shall be the taxes attributable to the plaintiff's exercise of the exercised options.
(g) The defendant shall deliver timely to the plaintiff a sum sufficient to represent her share of the options.
(h) If required by the plan in order to exercise the options, the plaintiff will provide the advance sums necessary to exercise her options at the strike price. The defendant shall pay to the plaintiff the monies generated by the exercise of the options, less applicable taxes as set forth under (F) above and actual cost of the stock purchase at the strike price, if not advanced by plaintiff, within two business days of receipt of the funds.
6. TRAVEL/FREQUENT FLYER ACCOUNTS
The defendant has travel/frequent flyer accounts with Marriott Rewards, Starwood Preferred Guest, American Airlines Advantage and US Air. All rewards earned shall be divided equally between the parties, taking into consideration any rewards used by either party while this action has been pending.
7. TAX REFUNDS CT Page 15882
The parties received a federal tax refund in the amount of $4,361.00 and a state refund from the state of New York in the amount of $2,466.64 for tax year 2004. Both refunds have already been divided equally between the parties.8. TAX DEPENDENCY EXEMPTION
The defendant shall be entitled to claim the parties' son as a dependent for all tax reporting purposes and if required, the plaintiff shall sign any documentation necessary to effectuate this clause.
9. RETIREMENT ACCOUNTS (a) DEFINED BENEFIT PLAN
A qualified domestic relations order ("QDRO") shall enter transferring to the plaintiff 50 percent of the defendant's accrued interest in the General Motors Retirement Program for Salaried Employees, valued as of the date of the dissolution of the parties' marriage, together with pre-retirement survivorship benefits and cost of living adjustments as to the plaintiff's share. The court shall retain jurisdiction to effectuate the entry of this provision. The parties shall be equally responsible for any fees associated with the drafting of the QDRO.
(b) 401K
The defendant has a General Motors Savings-Stock Purchase Plan with Fidelity in the approximate amount of $279,287. A qualified domestic relations order shall enter such that 50 percent shall be transferred to the plaintiff by way of a qualified domestic relations order ("QDRO"), which shall include gains and losses until transfer.
(c) PROCESSING
The parties will equally share the cost of a consultant, Mr. Barry Kaplan, and each shall initially tender to him the sum of $500 to commence his investigation of the plans. Each party shall direct their attorney to cooperate in the timely processing of the qualified domestic relations orders and each party shall be individually responsible for their counsel fees incurred to finalize the qualified domestic relations orders.
Mr. Kaplan is not to be used for the processing of the 401k unless necessary. Any fees charged by Fidelity are to be divided equally between the parties.
(d) IRA
The defendant's Fidelity IRA shall be divided equally, valued as of the date of dissolution, and shall include any gains and losses until a distribution occurs.
10. PERSONAL INJURY AND BANK PROCEEDS
The personal injury proceeds received by the plaintiff that are held in a GMAC money market demand note with a balance of $13,467 are ordered divided equally between the parties. The plaintiff's New Mil Bank checking account with a balance of $1,609 is awarded to the plaintiff. The New Mil Bank joint account shown on the defendant's financial affidavit with a balance of $248 is awarded to the defendant, and the New Mil Bank money market account shown on the defendant's financial affidavit with a balance of $429 is awarded to the defendant. The GMAC demand note money market account shown on the defendant's financial affidavit with a balance of $2,728 is ordered divided equally between the parties. The cash surrender value of the defendant's equitable life insurance policy in the amount of $6,000 is awarded to the defendant.
11. TRUST PROCEEDS
The defendant is to pay to the plaintiff $112,500 within ninety (90) days from the date of the death of his mother or his receipt of family trust assets, whichever last occurs. In the event the payment is not made, then interest on said amount is to run at the rate of 8 percent per annum retroactive to the date of his mother's death. This court is aware of the mosaic concept. All of the other financial orders entered herein would have been exactly the same even if the family trust proceeds order is found to be invalid.
12. PERSONAL PROPERTY DISTRIBUTION
In addition to the personal property distribution ordered as shown on Exhibit A attached hereto the court further orders that the four security boxes, patio furniture consisting of table and six chairs, one umbrella, one fold-out chair, two ice bucket tables and one stool are all awarded to the defendant as well as the cross country ski aerobic, the defendant's golf club, his GM pins, and his old baseball cards. The court further awards to the defendant the Pfaltzgraff dishes, cups, saucers, lunch plates, serving platters, pitchers consisting of a complete set for fourteen. In the event the flatware/silverware that was a gift from the defendant's mother to the defendant are located, then those items are awarded to the defendant.
G. BY WAY OF ALIMONY
1. The defendant is to pay to the plaintiff alimony in the sum of $600 per week. Said alimony is to terminate upon the happening of the first of the following events: (a) the death of either party; (b) the remarriage of the plaintiff.
2. The provisions of § 46b-86(b) are applicable. An immediate wage withholding order shall enter.
3. The plaintiff shall be entitled to procure hospital and medical insurance under the defendant's medical insurance plan through his employment under COBRA for the maximum period of time allowed by law as such rights exist under the law, subject to the provisions of the health insurance plan offered by the defendant's employer. The plaintiff shall pay the costs of COBRA coverage for her benefit for so long as she shall request such coverage. The cost for the plaintiff to maintain COBRA benefits is $285.88 monthly.
The defendant shall cooperate with the plaintiff in all respects in order to effectuate her COBRA benefits and rights as stated herein.
4. In the event the defendant retires on or after age 65, such retirement shall not be considered to be a voluntary reduction of income.
H. MISCELLANEOUS ORDERS
1. The plaintiff is solely responsible for the balance due for attorneys fees to Attorney Christine Ellis in the amount of $742.50. Said amount is to be paid by the plaintiff by February 1, 2006.
2. The court finds that the dog is owned by the parties' daughter and therefore does not award it to either the plaintiff or the defendant.
3. As long as there is an outstanding alimony order or any obligation exists for the educational support of either child the parties shall exchange their full tax returns no later than April 15 for the prior year.
4. The plaintiff is to pay the liabilities shown on her financial affidavit and hold the defendant harmless.
I. BY WAY OF ATTORNEYS FEES
1. No attorneys fees are awarded in favor of either party.