Opinion
No. FA 03-0471928S
March 9, 2005
MEMORANDUM OF DECISION
The principal issues in this action for dissolution of marriage are the wife's earning capacity and financial needs and how the court should treat the husband's claim that the parties are beneficiaries of a constructive trust for moneys paid to the wife's father. Since the parties' proposed orders show no dispute on custody and visitation, the court adopts those proposals in its orders. The parties appeared for trial of this limited contested matter on two days in September and October of 2004. Both parties appeared for trial with counsel, testified, and offered certain exhibits into evidence. The wife's father also testified. After the end of evidence, both parties submitted briefs for the court's consideration.
The court has observed the demeanor of the parties and witnesses and evaluated their credibility. The court has carefully considered all of the evidence, including the exhibits and the testimony presented, according to the standards required by law. The court has carefully considered the statutory criteria for dissolving a marriage and entering orders regarding custody, visitation, child support, alimony, counsel fees, and equitable division of property and debt.
After making jurisdictional findings and summarizing the background and situation of each party, the court will discuss the issues here.
I — JURISDICTIONAL FINDINGS
The court finds that it has jurisdiction over the marriage. One party has resided in Connecticut continually for more than one year prior to the bringing of this action. The parties were married in East Haven, Connecticut, on July 19, 1988. They have three minor children who are issue of the marriage: Jaclyn, born on July 14, 1990; Andrea, born on September 3, 1993; and Rachel, born on April 22, 1998. Neither party has received state or municipal financial assistance, except for the wife's receipt of energy assistance. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation.
II — DISCUSSION A. The parties
The wife is 44 years old. Although she suffers from mitral valve prolapse and irritable bowel syndrome, both are controlled by medication. She has also had panic attacks, although none since she started taking an anti-anxiety medication. Before the marriage, she worked as a bank secretary, but after she became pregnant the parties agreed that she would quit work and become a stay-at-home mother. Shortly before trial, she began working two hours a day as a school cafeteria worker at lunchtime, earning $130 per week gross and $118 net, but she does not want to work longer hours and has not looked for full-time work. She wants to be home when all three children get out of school.
The husband is 46 years old, a high school graduate and in good health. He is a certified emergency medical technician and works as a firefighter for the New Haven Fire Department. In 2002 he earned approximately $60,000; he earned less in 2003 because of time off for a work-related injury but the total of his salary and workers' compensation benefits that year exceeded his 2002 income. At trial he submitted a financial affidavit showing approximately $62,000 gross annual income and almost $37,000 net after taxes, union dues, pension and other deferred compensation (in lieu of social security), and life and disability insurance. In the 1990s he also worked, when off-duty from the Fire Department, in construction and in the early 2000s he operated a tee-shirt business. He claimed at trial that in the late nineties his doctor advised him to stop working so hard and to quit his second job in construction; and the wife did not dispute this at trial. He claimed at trial that he stopped the tee-shirt business because it had proven more trouble than it was worth. He took and failed the lieutenant's examination at the Fire Department and has not tried again.
The wife testified that her husband was angry all the time and that the cause of the marital breakdown was his bad temper. She described several incidents at trial that she claimed were typical. One time, she said, he broke an oak chair over his knee in the children's presence. She said that on other occasions he damaged a wall after punching it, lifted the dinner table up after biting his tongue while eating, and screamed and swore after driving over a curb. She said that he once broke down the bathroom door when Jaclyn would not come out and the other children needed to use the facilities. The worst incident she described was an occasion when she claimed that he punched her brother, who she said had been trying to calm her husband down after one of their children had fallen down and cut her lip. She testified that the defendant had never struck her or the children.
The husband acknowledged that he and the wife argued during the marriage and admitted that some of the incidents alleged by his wife had happened, but he gave different accounts of some of them. He admitted punching and denting the wall, for example, but said that this was on the same occasion when he broke the chair. The parties had been arguing, he said, over the refusal of the wife's parents to sign papers for sale of the marital home, a very sensitive issue that outraged the husband because he felt that his in-laws were going back on a longtime agreement to let the parties purchase the home. He described the bathroom incident as relatively minor, in which he was trying to deal with a recalcitrant daughter in a reasonable manner and denied breaking the door. He testified that his brother-in-law started the fight between them by grabbing him, pushing him against a wall, and than refusing to let go; only then, the husband said, did he hit his brother-in-law.
The husband thus admits arguments and some incidents of bad temper, but claims that they were not as severe as the wife claimed. The wife exhibited her own temper at trial, moreover. From the evidence offered at trial, it seems likely that the biggest factor dividing these parties was not the husband's temper but his belief that the wife's parents were backing out of their promise to sell the marital home to the parties. When they were first married, the parties rented in New Haven, but in 1989 they moved into a home that the wife's father had just purchased and was located across the street from the home of wife's parents. The wife's father agreed to sell the house to them and that their rent would be applied to the sales price. Over the years the husband made certain improvements to the marital home, such as putting on siding and installing cabinetry. But in late 2002, when the husband asked his in-laws to sign documents for the sale, they refused to do so. He came to believe that his wife was cooperating with them to keep him from getting any share of the marital home. This dispute with his wife and the in-laws over the house was just as much the cause of the marital breakdown as the husband's temper. The court thus does not ascribe fault to either party.
III — FINANCIAL ISSUES A. Properly Distribution
"There are three stages of analysis regarding the equitable distribution of each resource; first, whether the resource is property within Section 46b-81 to be equally 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." Krafick v. Krafick, 234 Conn. 783, 792-93 (1995). The court finds that all items of property listed on each party's financial affidavit are property subject to distribution under General Statutes § 46b-81. The court adopts the values listed on the affidavits, except that neither party has provided a value for certain of their pensions, which the court thus lacks sufficient information to value.
The most significant difference in the parties' proposals for property distribution is the husband's claim that the court should offset his interest in what he claims to be the parties' constructive trust for purchase of the marital home with other property. Evidence was introduced that would support the existence of a constructive trust: an admitted promise by the father-in-law to sell the home to the parties, an agreement between the father-in-law and the husband that rent would be credited toward the purchase price, and the husband's labors improving the property over the years. The problem with the husband's position, however, is that the court lacks authority here to find or award a constructive trust, because the owner of the property, the wife's father, is not a party to the action. Without a fully contested trial, where the wife's father had the opportunity to present evidence and examine witnesses, the court cannot ascertain whether in fact to impose such a trust. Any interest the parties may have in the marital home, by a way of a constructive trust or otherwise, is a contingent, unliquidated claim that is nonetheless marital property. Raccio v. Raccio, 41 Conn.Sup. 115, 556 A.2d 639 (1987). The fairest thing to do here, in consideration of the statutory factors for awards of property, all the evidence here, and the court's other orders, is to award each party a percentage interest in any such claim, should it ever be pursued in court, rather than assuming here, without the benefit of a trial involving all interested parties, that such a constructive trust should or would be imposed.
These facts also provide some support for a claim of partial performance of an oral contract for purchase of the marital home. Although the statute of frauds requires contracts for the conveyance of realty to be in writing; Hieble v. Hieble, 164 Conn. 56, 59, 316 A.2d 777 (1972), our courts have "repeatedly recognized that a contract is enforceable, despite the statute, when, subsequent to the making of the contract, there has been conduct that amounts to part performance." Heyman v. CBS, Inc., 178 Conn. 215, 222, 423 A.2d 887 (1979).
The husband also claims that he should be entitled to keep, without effect on the court's property distribution, $15,000 that, pursuant to pendente lite orders entered by agreement of the parties, he withdrew from joint funds but did not spend and instead put into savings. His wife also took $15,000 from joint funds, but she spent hers. In effect, he claims that he should not be penalized for having been frugal with the money he was allowed to withdraw. There might be some appeal to his argument had it been shown that the wife spent the money she withdrew on frivolous items; but the court instead finds credible her testimony that she spent this money to support herself and the three children, who lived with her after the husband left the marital home.
When the court ordered on February 11, 2003, that each party could withdraw $10,000 from the joint funds, it also ordered the husband to pay $300 per week in unallocated support. Based on the parties' financial affidavits at the time, the presumptive support amount was for him to pay $286. Thus, virtually the entire $300 went toward his share of the children's needs, and there was little remaining for the wife's own needs and those of the children. Ten months later, on December 11, 2003, when the court permitted each party to withdraw an additional $5,000, there was no indication filed that their incomes and the presumptive amount had changed, and he was not ordered to pay any additional support. Thus, the wife needed the $15,000 to meet her needs and those of her children. The fact that the husband was able to bank his money shows that he did not need it to meet his needs or those of the children. Furthermore, property is valued and assigned based on its value and the statutory factors on the day of dissolution.
The wife asks for half of the husband's Fire Department pension and two deferred compensation plans to which he has contributed while at the Fire Department. The husband asks for 18 per cent of the wife's pension, which she earned before and during the marriage. After considering all the evidence and information submitted to the court, in light of the statutory factors, the court awards each party half of all bank accounts, stocks, bonds and mutual funds listed on sections 4C and E of their financial affidavits and half of any claim against the wife's father for any ownership interest in the marital home. As for the various deferred compensation plans listed on section 4G of the parties' last financial affidavits, each party is awarded the plan listed on its own affidavit, less a coverture share awarded the other party. For purposes of awarding the coverture share, the value of each such plan shall be determined on the day of dissolution. The coverture share shall be half of the amount by which the value of each deferred compensation plan listed on the other party's affidavit increased or accrued during the marriage. Thus, if a particular benefit belonging to one spouse was worth $10,000 on the day the marriage and is worth $25,000 now, it is the court's intent to award the other party half of the amount by which the value of the plan increased, or, in this hypothetical, half of $15,000; similarly, if a defined benefit plan of one spouse had increased from a monthly payment value of $300 at the time of the marriage to $450 now, it is the court's intent to award the other spouse half of the amount by which that monthly benefit increased, of half of $150 per month.
B. Alimony and support
One issue the court must consider, in terms of alimony and child support, is the reasonableness of the wife's desire not to work any more than two hours a day because, she claims, their children need her at home after school. Although their oldest daughter, Jaclyn, is 14 years old, and that age might be considered suitable for short-term babysitting for the other siblings after school until a parent gets home from work, Jaclyn has a form of autism, gets frustrated with herself, has frequent outbursts of bad temper, and is on medication for depression and her behavior problems. Although Jaclyn can care for herself after school, she cannot reasonably be expected to be responsible for her siblings in the afternoons.
A reasonable assessment of the parties' incomes and expenses, however, shows that they do not make enough money to meet the needs of two households. The wife's financial affidavit shows weekly expenses of almost $625, the husband's almost $610 (before paying child support) per week, but their net income together is little more than half that. Although it is obvious that each party must cut their expenses, they also need more income to meet their needs. It is no longer financially viable or realistic for the plaintiff not to work more than a couple of hours a day. If the wife worked full-time during the days, however, the youngest child, and perhaps even the middle child, would need paid daycare after school. In view of the costs of daycare, therefore, it makes most sense to find that the wife has an earning capacity of at least minimum wage for five hours a day, from nine to two, a schedule that would let her be home after school. Even so, the parties will need to cut back their expenses in order to live within their means.
Cross examination showed that the wife's financial affidavit overstated some of her expenses. Although her financial affidavit listed medical and dental expenses of $100 per week, the court finds that claim not credible, based on her testimony and the documentary evidence she submitted (2004 pharmacy receipts and a copy of her checkbook register). Moreover, the fuel cost of $80 per week is over-stated. Finally, although she claims rent of $125 per week, her checkbook register (in which she lists both check and cash payments) shows that she often does not pay that amount, in some months not even paying anything. Her father also testified that he has told her he did not want to accept the rental payments from her and has forgiven missed rent.
The child support guidelines require the court to find the presumptive support amount based on the parties' actual current incomes. The presumptive amount is for the husband to pay child support of $302 per week. Taking the wife's earning capacity into account as a deviation criterion would reduce child support by less than $10 per week and the court cannot therefore find that it is inequitable to order the presumptive amount. After considering all the statutory factors relevant to awards of alimony, the court awards the wife periodic alimony of $75 per week for ten years and lump sum alimony of $5,000. In ten years, the youngest child will be almost 17 years old and none of the children should have needed their mother at home after school for several years. Ten years is intended to give the wife time to find more lucrative full-time employment or obtain the skills and training necessary to do so and should provide the wife with sufficient time to do so.
C. Counsel fees
The plaintiff has requested payment toward her counsel fees. Pursuant to General Statutes § 46b-62, the court may order payment of counsel fees after considering the parties' respective financial abilities and the criteria set forth in General Statutes § 46b-82. Moreover, the court must take care that its determination of this question does not substantially undermine its other financial orders.
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: 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 counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418,547 A.2d 922 (1988). Taking into consideration all the statutory factors mandated by § 46b-62, as elucidated by the Appellate Court in Miller v. Miller, the court awards no counsel fees.
IV — ORDERS
After considering all the statutory and regulatory criteria for dissolving a marriage and entering orders regarding equitable distribution of property and division of debt, alimony, support of minor children, orders of life and health insurance, and payment of the minor child's health expenditures, and the award of counsel fees, together with applicable case law and all the evidence and information presented by the parties presented here, the court hereby enters the following orders:
(1) Dissolution of marriage
The marriage of the parties, having broken down irretrievably, is hereby dissolved.
(2) Parenting Orders (a) Legal and Physical Custody
The parties will share joint legal custody of their minor children, who will reside primarily with the mother.
(b) Parenting Time.
The father will have reasonable and liberal parenting time, including but not limited to the following:
i) During the school year, two days per week from 6:00 p.m. to 8:00 p.m. and on weekends determined by the father's work schedule. The father will feed the children and supervise homework assignments during his parenting time.
ii) During summer vacations, two full weekdays plus weekends based on his schedule.
iii) Both parents will have one exclusive vacation week with the minor children each year.
iv) The parties will rotate holidays. The children shall spend Mother's Day with the plaintiff and Father's Day with the defendant.
(3) Child support
The father shall pay the mother child support in the amount of $302 per week, plus 53 per cent of unreimbursed health care expenses for the minor children in excess of $100 per year and of qualifying child care expenses. The mother shall be responsible for the first one hundred dollars of unreimbursed health care expenses each year, plus 47 per cent of the balance and of qualifying child care expenses.
(4) Health Insurance
The defendant shall maintain health and dental insurance for the benefit of the parties' minor children if available at a reasonable cost through his employer. If comparable insurance becomes available to plaintiff through her employment at lesser cost than to defendant, then plaintiff shall instead provide such insurance.
The defendant shall cooperate in any efforts plaintiff makes to obtain health insurance for herself under COBRA.
(5) Educational Support Order
The court retains jurisdiction to enter an educational support order under General Statutes § 46b-56c upon written motion or petition of either party.
(6) Life insurance
The father will maintain life insurance in the amount of $100,000, with the three children as the sole beneficiaries, until all three children have reached the age of 23 or are not longer enrolled as full-time students.
(7) Alimony
The defendant shall pay the plaintiff alimony of $75 per week for ten years. Alimony will terminate upon the death of either party or if the plaintiff remarries or cohabits, within the meaning of General Statutes § 46b-56(c), with another. Plaintiff is also awarded lump sum alimony in the amount of $5,000, to be paid immediately.
(8) Exchange of income information and tax returns
Both parties shall notify the other in writing immediately of any change in their employment or income. They shall annually exchange copies of their complete federal income tax returns
(9) Equitable Distribution of Property and Debt (a) Interest in the marital home
The parties have two interests in the marital home that are marital property: their present occupancy and the contingent, unliquidated claim in ownership of the home. The wife is awarded the right of occupancy. Interest in the contingent, unliquidated claim is divided equally between the two parties.
(b) Bank accounts.
The contents of all bank accounts shall be divided equally between the parties, based on the value of those accounts on the date of dissolution.
(c) Deferred compensation
Each party is awarded the deferred compensation listed on its own financial affidavit, except that the other party is also awarded a coverture share of each such deferred compensation plan, based on its value on the day of judgment. The coverture share shall be one-half the amount by which the value of each deferred compensation plan increased or accrued during the marriage.
(d) Other Property
All other property on each party's financial affidavit is awarded to that party, with the exception of household furnishings and personalty, the division of which the parties shall mediate with family relations and the court will determine later should they be unable to agree.
(e) Tax Deductions
The husband will be entitled to claim the three minor children as dependents on his federal and state tax returns for as long as his child support contribution exceeds the wife's income from alimony and employment. Thereafter, they shall split the deductions; if there are three dependency deductions, then the wife may take two in the first year after they begin sharing deductions, and the husband the following year.
(f) Debts and Liabilities
Each party shall be responsible for liabilities in its own name, except as otherwise set forth herein.
BY THE COURT
STEPHEN F. FRAZZINII JUDGE OF THE SUPERIOR COURT