Monique Tatro v. Jefferson Tatro
MEMORANDUM OF DECISION
This dissolution of marriage action was commenced by the plaintiff, Monique Tatro, against the defendant, Jefferson Tatro, by summons and complaint dated January 7, 2013, bearing a return date of January 29, 2013. The case was tried before the court on September 25, 2013. The plaintiff was represented by Attorney Jeffrey N. Lowe of Chinigo, Leone & Maruzo, LLP and the defendant was represented by Attorney Timothy P. Lenes of Cotter, Greenfield, Manfredi & Lenes, PC. The parties stipulated to the custody and visitation issues and several of the property issues leaving the court with the determination of alimony, allocation of the debt associated with the marital home, allocation of the child dependency exemptions and attorneys fees. The court heard testimony from both parties. No other witnesses were called. Several exhibits were introduced into evidence.
Upon careful consideration of the evidence presented, the pertinent statutory law, in particular General Statutes §§ 46b–82 (alimony), 46b–81 (assignment of the marital estate) and the relevant case law and having observed the demeanor of the parties at time of trial, the court makes the following findings of fact and conclusions of law.
The plaintiff, whose birth name was Monique Lach, and the defendant were married on April 13, 1996 in Jewett City, Connecticut. The plaintiff continuously resided in Connecticut for at least one year before this action was commenced. The parties have one minor child, issue of the marriage, to wit: Jacob Tatro, born April 12, 1998. The plaintiff is not currently pregnant. Neither the parties nor their child have been the recipients of state or municipal assistance during the marriage. The court finds that the allegations of the complaint are proven and true. The parties' marriage has broken down irretrievably and there is no hope of reconciliation. All statutory stays have expired. The court has jurisdiction over this matter.
Factual Background and Findings
The plaintiff is 42 years old, in generally good health, has a high school education and is a certified Phlebotomist. She is currently employed at Westerly Hospital and earns $17.88 per hour and works a 40 hour week. The plaintiff's financial affidavit reflects a net weekly income of $544.24 after her standard deductions.
The plaintiff currently resides in the marital home with the parties' son. The defendant vacated the marital home in November of 2012 after the plaintiff asked him to leave upon learning that he was having an affair with a co-worker. The parties both contend that they owe more on the marital home then it is worth. The plaintiff desires to remain in the marital home to provide stability for the parties' son. The parties built the home when the plaintiff was pregnant and it is the only home in which their son has lived. They have stipulated that the defendant will quitclaim his interest in the marital home to the plaintiff. The appraised value of the home is $187,500. It is encumbered by a first mortgage and a home equity line of credit (“HELOC”). As of the time of trial, the balances owed were $136,800 on the first mortgage and $74,600 on the HELOC. The parties could not come to terms of an agreement with respect to repayment of the HELOC. The HELOC has been closed for several years. According to the terms of the loan, in 2017 the outstanding balance will be amortized over a 15–year period at an undetermined rate of interest. It is undisputed that the parties used $35,000 of the original HELOC proceeds in May of 2007 to purchase the defendant's vehicle and that they have made only interest payments on the HELOC since its inception. Accordingly, the plaintiff seeks to hold the defendant responsible for repayment of the $35,000 used for the purchase of his vehicle. The defendant, on the other hand, contends that since the plaintiff is receiving his interest in the home, she should be solely responsible for both the first mortgage and the entire HELOC. He further testified that throughout the marriage the plaintiff was always afforded a new leased vehicle while he was forced to drive a less than desirable vehicle and that this vehicle was a “gift.”
The defendant is 46 years old, has a high school education and is in generally good health. He sustained a work related injury to his right arm in November of 2012. He is right hand dominant and did miss time from work as a result of the injury. He has yet to receive a disability rating or a specific award of a compensation as a result of any permanent injury he may have sustained. He is employed with State of Connecticut Department of Transportation as a Crew Leader for the Canterbury Garage. He works approximately 37.5 hours per week and has mandatory overtime. The majority of his overtime is a result of storm duty during the winter months. He currently earns $26.65 per hour. According to his W2s, he earned gross wages of $52,034 and $48,608 in 2012 and 2011, respectively. However, his year to date pay as reflected on his September 5, 2013 pay stub was $49,466.48 putting him on target to earn approximately $62,000 exclusive of any additional overtime. Additionally, he received workers' compensation benefits in 2013 in the amount of $1,719.46. The defendant's financial affidavit shows a net weekly income of $634 after standard deductions.
The parties own a 2006 Ford F350 and a 2010 Nissan Pathfinder. The F350, which is the vehicle the defendant drives, is owned outright. As set forth above, the parties paid approximately $35,000 for said vehicle using funds withdrawn from their HELOC. The Pathfinder, which is the vehicle the plaintiff drives, is encumbered with a loan of approximately $16,200.
The plaintiff has an American Funds IRA with an approximate balance of $4,163.95. The defendant also has a pension through his state employment. Neither party presented any evidence concerning the value of the pension. However, they have stipulated that the plaintiff shall receive 50% of the value of the pension as of the date of dissolution.
The parties' testimony concerning the nature of their marriage was divergent. The plaintiff testified that she thought she was living a fairytale. She testified that she, her husband and their son did everything together. They were very happy and laughed all of the time. In October of 2012, the defendant got his promotion to Crew Leader and she began to notice that he was pulling away from them. She initially attributed this to stress associated with his new position. Shortly thereafter he was injured on the job and she thought that the injury further led to his stress and his distant state. One night after he didn't join her in their bedroom she confronted him and he admitted that he was involved with someone else.
The defendant testified that he felt the marriage had long since broken down before he got involved with his co-worker. He testified that he felt as though he was merely a handyman, an atm machine and a roommate, claiming there was very little intimacy between the parties. The defendant acknowledged that he did not share these feelings with the plaintiff. When the plaintiff learned of the defendant's affair, she was devastated and vehemently fought to hold her family together begging the defendant to attend marital counseling. The defendant refused.
The uncontroverted testimony showed the defendant is residing with his girlfriend who contributes to his support and maintenance even purchasing a Harley Davidson motorcycle for him. The evidence likewise was that the defendant has purchased gifts for her, albeit at a much lesser expense.
The court finds that while the defendant may have been unhappy and his affair may not have been the sole reason for the breakdown of the marriage, it certainly made any efforts to save the marriage less likely particularly given his outright refusal to attend any counseling. Moreover, he withdrew from the marriage without communicating his unhappiness to the plaintiff and providing her with an opportunity to work on whatever issues he felt they had between them. The court finds the defendant more at fault for the breakdown of the marriage than the plaintiff.
The court hereby enters the following orders, many of which are by stipulation 1 of the parties:
1. Dissolution: The marriage of the parties is dissolved on the grounds of irretrievable breakdown. The parties are declared single and unmarried.
2. Custody and Visitation: The parties shall have joint legal custody of the minor child who shall principally reside with the plaintiff. Any visitation shall be mutually arranged by and between the minor child and the defendant. It is contemplated that said visitation shall include overnights on week-ends and major holidays.
3. Medical Insurance: The defendant shall continue to maintain medical insurance for the benefit of the minor child as is available to him through his employment at a reasonable cost.
4. Child Support: The defendant shall pay to the plaintiff the sum of $155 per week as child support on behalf of the minor child. Said sum is in substantial compliance with the State of Connecticut Child Support and Arrearage Guidelines.
Additionally, the defendant shall be responsible for 50% of all unreimbursed medical, dental, psychological and medical related expenses of the minor child. Said terms shall be construed to be inclusive rather than exclusive.
5. Post–Majority Educational Support Orders: Pursuant to the stipulation of the parties, the court retains continuing jurisdiction regarding post-majority educational support for the minor child pursuant to General Statutes § 46b–56c.
6. Dependency Exemption: The plaintiff shall claim the minor child as a dependent for state and federal income tax purposes in all odd years in which the child may be claimed and the defendant shall claim him in all even years.
7. Alimony: The plaintiff seeks an award of alimony of $242 per week for the period of nine (9) years and an order seeking to have the defendant pay $628.75 per month for the next 60 months to cover the amortized expense of the $35,000 on the HELOC representing the purchase price of his vehicle. The defendant proposes an award of no alimony and that the plaintiff be fully responsible for the HELOC.
In determining whether to award alimony, the court considers the factors set forth in C.G.S. § 46b–82 including “․ the length of the marriage, the causes for the ․ dissolution ․ the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom custody has been awarded, the desirability of such parent's securing employment.” “There is no absolute right to alimony ․ Awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court.” (Citations omitted.) Weinstein v. Weinstein, 18 Conn.App. 622, 637, 561 A.2d 443 (1989).
In this matter the court finds that the defendant was more at fault for the breakdown of the marriage. This is a long term marriage involving parties who are of similar age, health, station and occupation. However, the defendant has the greater ability for earnings and asset acquisition due to his mandatory overtime and increasing retirement benefits due to his state employment.
Under the facts of this case and after consideration of the statutory criteria and the net income of the parties, the court orders the husband to pay to the wife the sum of $150 per week as periodic alimony through December 31, 2019. Said alimony shall terminate upon the earlier of said date, the death of either party or the remarriage of the wife.
8. Marital Residence: The defendant shall quitclaim to the plaintiff all of his right, title and interest in the marital home located at 225 Brown Road, Voluntown, Connecticut. The plaintiff shall be solely responsible for all costs associated therewith including the mortgage, HELOC, taxes, insurance and the like. The plaintiff shall utilize her best efforts to refinance for the purpose of removing the defendant from liability on the first mortgage and HELOC. The plaintiff shall submit three applications for refinance each year. In the event that she is unable to refinance before March 2018 then she shall be required to list the property for sale with a residential real estate agent at its fair market value and accept any bona fide offers within 5% of the list price. She shall be required to reduce the listing price every 45 days in accordance with recommendations of the listing agent.
The court will retain jurisdiction over the real estate for the purposes of effectuating the orders that enter herein.
9. Property Settlement: The defendant shall pay to the plaintiff the sum of $150 per week each week commencing immediately and continuing through December 31, 2019.
10. Health Insurance: The parties shall each be responsible for their own health insurance.
11. Motor Vehicles: The plaintiff shall retain all right, title and interest in the 2010 Nissan Pathfinder and shall be solely responsible for all costs associated therewith and shall hold the defendant harmless and shall indemnify him for any liability arising therefrom.
The defendant shall retain all right, title and interest in the Ford F350 and he shall be solely responsible for all costs associated therewith and shall hold the plaintiff harmless and shall indemnify her for any liability arising therefrom.
12. Bank Accounts and Stocks: The parties shall each retain their own bank accounts and stocks free and clear of any claim by the other.
13. Retirement Assets: The plaintiff shall be entitled to 50% of the defendant's pension with the State of Connecticut valued as of the date of dissolution. The defendant must elect to designate the plaintiff as a survivor beneficiary at the time of retirement. Until such time as he retires, he shall name the wife as beneficiary on his existing life insurance policies.
14. Personal Property: The parties shall attempt to divide their personal property to their mutual satisfaction. In the event they are unable to do so, they shall submit to binding arbitration and be equally responsible for the cost thereof.
15. Liabilities: Each party shall be liable for his or her individual debts as listed on their respective financial affidavits.
16. Life Insurance: The parties have stipulated that the minor child shall be designated as the beneficiary on the defendant's existing life insurance policies. However, in order to secure a portion of the plaintiff's share of the defendant's pension, the court has ordered that the plaintiff be designated as the beneficiary until such time as the defendant is able to elect the plaintiff as survivor beneficiary. Thereafter, the defendant shall name the minor child as a beneficiary on his life insurance policies until such time as the child reaches the age of 23 or there are no post-secondary educational support orders in effect.
The defendant shall immediately bring current the Prudential Life Insurance premiums and execute an authorization permitting the plaintiff to obtain verification on a yearly basis as to its existence and beneficiary designation.
17. Attorneys Fees: Each party shall be responsible for their own attorneys fees.
18. Non-dischargeability: The payments and obligations referenced in these orders are intended to be in the nature of spousal support within the meaning of the United States Bankruptcy Code and shall not be discharged in bankruptcy.
FN1. The stipulation of the parties is attached hereto and incorporated by reference herein, to the extent the court orders differ from the stipulation of the parties, it is the stipulation that shall govern except with respect to the order for life insurance. [Editor's note: The referenced stipulation is not included with the reported opinion.]. FN1. The stipulation of the parties is attached hereto and incorporated by reference herein, to the extent the court orders differ from the stipulation of the parties, it is the stipulation that shall govern except with respect to the order for life insurance. [Editor's note: The referenced stipulation is not included with the reported opinion.]
Connors, Susan A., J.