John C. Andrews v. Margie M. Andrews

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Superior Court of Connecticut.

John C. Andrews v. Margie M. Andrews

FA104113825S

-- April 28, 2011

MEMORANDUM OF DECISION

This is an action seeking dissolution of the parties' marriage.

The parties disagreed as to how their property should be divided and as to whether defendant ought to be awarded alimony.   The court has heard both of them on these issues, and renders this decision after weighing the credibility of each witness and considering all of the factors enumerated in CONN. GEN. STAT. §§ 46b–81 and 46b–82.

I. Findings and Legal Discussion

The court finds that it has jurisdiction of the matter and that all statutory stays have expired.   The defendant was personally served and has appeared as her own counsel.

The parties intermarried at New London, Connecticut, on November 10, 1978.   Defendant's maiden name was Wysoczynski.   There are no minor children issue of the marriage, although there were three children born to them who are now all adults.

Plaintiff is fifty-eight years old and has a high school education.   As a result of chronic health issues which render him unable to work at present or, foreseeably, for the rest of his years, he received a large lump sum workers' compensation award in 2009 and is now on social security disability amounting to about $1,920 per month.   He has surgeries for carpal and cubical tunnel syndromes, diagnosed almost ten years ago.   He walks with a noticeable limp and is a regular patient in the pain relief clinic at Yale.

Defendant is fifty-five years old, and also has some health issues including hypertension, bronchiectasis, and interstitial lung disease.   There was no evidence that these conditions affect her earning capacity, or are life-threatening.   She earned a bachelor's degree in Business Administration in 2007, although she has yet to put it to any career use.   She reports income of $200 weekly paid to her by her daughter as compensation for providing daycare to her granddaughter.   Also, as a member of a Native American tribe, she receives an annual stipend of $2,000.

The problems in their marriage began at least fifteen, and perhaps as long as thirty years ago.   She reported that about that many years ago, plaintiff struck her so hard that he broke her nose.   He characterized this as an accidental contact in the middle of a scrap which she had started.   Over the next fifteen years, they fought again on subsequent occasions, though with less dramatic consequences.   Around 1995, defendant decided to move herself from the marital bedroom into the living room.   She testified that her marriage has been over ever since.   Rather than separating, however, they pursued separate paths while living under the same roof for the next six or seven years.   In 2002, she met another man and moved into his house, where she continues to live today.   That man now is her principal means of support.   The court cannot pinpoint any one moment or any one event upon which to predicate a finding that the behavior of either equates to cause for the breakdown of their marriage;  indisputably, that marriage has, by now, broken down irretrievably.

One contested issue is defendant's claim for alimony.   Her conceded cohabitation is not a categorical barrier to an award in her favor;  see, Demaria v. Demaria, 247 Conn. 715 (1999), and Williams v. Williams, 276 Conn. 491 (2005);  but considering the statutory factors in their entirety, her claim is extremely weak.   She possesses a college degree yet has done nothing to find a job since she earned that degree in 2007.   She derives considerable economic advantage from her new paramour, including free housing and his supplying her with the other necessities of life.   Plaintiff's earning capacity is minimal, his income confined to social security disability and unlikely to increase;  even if she earns only minimal wages she can match or exceed his income.

In resolving property division issues, the court has considered all of the factors set forth in CONN. GEN. STAT. § 46b–81.   There are only three assets of any significance, namely, the plaintiff's Doncaster defined benefit pension plan, his 2007 debt-free Ford Mustang, and the marital residence located at 33 Kenyon Road in the town of Waterford.

The pension does not go into pay status until November 1, 2018 (his “normal retirement date”), when it will begin paying $297.24 monthly.   That amount may be reduced by an unknown amount in the event that the beneficiary elects a “Joint & Survivor Annuity” making part or all of the monthly benefit payable to his survivor.   Also, the Plan affords plaintiff the option of receiving payments before the “normal retirement date,” an election which would result in lower monthly amounts being paid.

The Mustang is a vehicle he purchased sometime after receiving his workers' compensation settlement in 2009.   It appears to be his only vehicle now, although defendant suggested in her examination of him that he had bought and sold a number of others at earlier times.   The vehicle is not extravagant and is necessary for his having access to medical treatment and for other more routine purposes.

The residence is one which the parties acquired jointly in 1986.   Until 2002, they resided in it together.   Neither submitted an appraisal of the property, but at the court's insistence they were able to agree (based upon objectively verifiable information) that it has a fair market value of at least $140,000.   In fact, the property's location (less than a mile from a major shopping center) and size suggest that its fair market value might increase substantially if it were submitted for a subdivision.   Even with a sale at $140,000, however, there is approximately $20,000 of equity after payment of the existing encumbrances and routine closing costs.

For the past nine years, plaintiff has lived in it alone, and has paid some of the mortgage, tax, and utility charges, although substantial unpaid amounts have resulted in liens upon the property.   Defendant has contributed nothing towards any of the household bills.   It is well settled that a “․ property division ought to accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible, marital assets.   The investment of human capital in homemaking has worth and should be evaluated in a property division incident to a dissolution of marriage;  ․ accordingly, ․ an equitable distribution of property should take into consideration [a non-working spouse's] contributions to the marriage, including homemaking activities and primary caretaking responsibilities.”  O'Neill v. O'Neill, 13 Conn.App. 300, 311 (1988).   Here, however, even the non-monetary contributions by defendant over a period of close to a decade are zero.   These factors would seem to justify an award favoring plaintiff in the distribution of the equity.

On the other hand, plaintiff has had the use and enjoyment of the home over this nine-year period without interference from the defendant.   Despite substantial cash having come into his hands just two years ago, he maintains under oath that all of it has been spent on bills, yet his home remains subject to multiple liens for taxes and utilities.   He seeks an award of seventy percent of the equity.

The court concludes that the mutual and longstanding indifference on the part of both parties to the preservation and improvement of this asset warrants no disparity in the allocation of its residual value between them upon the dissolution of their marriage.

Beyond these three major items, the parties were at odds over various and sundry other things including the distribution of personal belongings (including seventeen dogs), and the effect of certain pendente lite sanctions ordered by the court (Shluger, J.) on January 10, 2011.   This court has determined these issues in light of the appropriate statutory and equitable factors.

II. Orders

1) The marriage is dissolved on the basis of irretrievable breakdown.

2) No alimony is awarded to either party.

3) The residence located at 33 Kenyon Road in Waterford shall be sold.   By July 1, 2011, the parties shall enter into a contract with a mutually agreeable realtor at the price of $140,000, unless they jointly agree upon a different sales price.   The parties are ordered to cooperate with each other and with their chosen real estate professional so as to maximize the property's value.

4) Pending the sale, plaintiff shall remain in possession of the residence and shall be responsible for its normal upkeep and wear and tear, and shall maintain the house in a condition suitable for its being marketed.   Also, he shall pay the mortgage, tax, and utility charges accruing hereafter, until the time of sale.

5) At the closing, the proceeds will be used to pay the usual and customary costs of sale including the first and second mortgages on the property, and all liens filed in the names of the two parties jointly.   The remaining proceeds will be divided equally, subject, however, to those liens listed solely in plaintiff's name being deducted from his share and those liens listed solely in defendant's name being deducted from her share.

6) Plaintiff is awarded the 2007 Ford Mustang.

7) By a Qualified Domestic Relations Order to be prepared by plaintiff's counsel, plaintiff shall convey to defendant a fifty percent (50%) interest in his Doncaster pension.   He shall elect the “Joint & Survivor Annuity” option, and each will receive one-half of the reduced monthly payment which election of that option will impose.   If he chooses to receive benefits earlier than 2018 by electing the “Early Retirement” provisions of this pension, defendant's share of the pension shall also commence at that time.

8) Defendant may retain her tribal stipend without paying any portion to plaintiff.

9) At the time of closing on the real property, defendant shall pay to counsel for plaintiff the sum of $750 awarded by Judge Shluger as attorney fees for her failure to appear at a deposition properly scheduled and noticed in December of 2010.   This court will not award any sum for failure, after January 10, to complete discovery, as there was no proof that she was notified of the court's pendente lite sanction in anticipation of the trial in the case.

10) Plaintiff's Exhibit 5, and Defendant's Exhibit M, are lists of several dozen items of personal property which each is claiming, many having little intrinsic value.   In dispute between them are a John Deere lawn tractor, a shell lamp, and a one-dollar coin of unknown provenance.   Plaintiff is awarded all items on his list, except the John Deere lawn tractor.   Defendant is awarded all items on her list, except the coin, the lamp, and the John Deere lawn tractor.   The parties shall sell the tractor and divide the sales proceeds equally between themselves.

11) The parties may divide the seventeen dogs between themselves to their mutual satisfaction.   Any animal not wanted, or disputed over, shall be turned over to the Humane Society or the Waterford Animal Control Officer for adoption or other means of disposition.   Each party shall pay one half of the fee required by the recipient for this service.

12) Aside from the fees addressed in paragraph 8, each party shall be responsible for his or her own counsel fees and costs.

Boland, J.

Boland, John D., J.

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