Michael Duncan v. Dyane Derringer (2009)

MEMORANDUM OF DECISION

The plaintiff who was a resident of Colchester, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on July 7, 2009.   At the time, the defendant was a resident of Colchester, Connecticut.

The court finds that it has jurisdiction and that all statutory stays have expired.

A limited contested trial was held before the undersigned on November 18 and December 23, 2009.   Both parties appeared at trial and were represented by counsel.

The court has fully considered the criteria of General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that the following facts were proven by a preponderance of the evidence:

1. The plaintiff and the defendant were married on January 8, 2005 at Los Altos, California.

2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.

3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.

4. There is one child born to the wife, issue of the marriage;  namely, Lorea G. Duncan born July 2, 2002.   No other children have been born to the wife since the date of the marriage.

5. Neither party has received assistance from any State or local agency.

6. The wife has another child, from her previous marriage.   The husband is the legal guardian of said child who is 17 and who lives elsewhere.   Neither party financially supports said child.

7. At the time of the marriage, the husband owned a home in Colchester with approximately $150,000 in equity.

8. During most of the marriage, the wife suffered from a wide range of illnesses and ailments including cirrhosis, fibromyalgia, alcoholism, drug abuse, depression, fatigue and an auto accident.   The husband has been consistently employed, has been and is the primary caregiver of their child who suffers some residual injuries from the same auto accident.   The cause of the dissolution is found to be primarily hers.

9. The husband is the legal guardian of Mallory Derringer, the wife's daughter from a previous marriage.

10. The parties have been separated since May 2009 with the wife vacating the marital residence pursuant to a restraining order and DCF involvement.   She is unemployed, homeless and without funds.   She applied for SSD and was denied.

She claims to be disabled from employment but offered no expert evidence on that subject, despite her claim that she is under treatment with a variety of health care professionals and doctors.   She works temporarily, part-time, 20 hours per week.

11. There presently exists as marital assets the marital home in Colchester, Connecticut.   Said home was purchased in March 2006 by the wife's mother.   Upon the sale of the husband's previous Colchester home, he repaid his mother-in-law approximately $150,000.   The home is owned jointly by the husband and wife and has no mortgage.   The parties stipulated that the home value is $255,000.   The husband has a 401K plan worth approximately $3,000.

12. The debt of the parties includes real estate taxes in arrears and a $2,000 small claims judgment.   The wife has a $5,000 credit card debt.

13. The husband seeks sole custody of the minor child with supervised visitation to the mother and no unsupervised visitation until she has demonstrated six months of sobriety.   The wife seeks joint legal custody of the minor child with unsupervised access.

14. The husband seeks to retain the marital residence and pay to the wife the sum of $45,000.

15. The wife is seeking 75% of the value of the house irrespective of the husband's claim of premarital assets.

16. The wife is 50 years old and the husband is 53 years old.

17. There is an existing pendente lite order dated August 24, 2009 that the husband pay to the wife $2,500 as an allowance to prosecute which has not yet been accomplished.

18. The court finds that if this were an intact family, it is likely that the parents would have provided post-majority educational support to the children so the court will retain continuing jurisdiction regarding post-majority educational support pursuant to CGS § 46(b)-56c.

LEGAL DISCUSSION

“The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”   Gervais v. Gervais, 91 Conn.App. 840, 841, cert. denied 276 Conn. 919 (2005).

“Under Connecticut law, the trial court's discretion as to custody and visitation is not limited to [adopting the specific custodial arrangement sought by one of the parties].   It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement ․ Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child.  (Citations omitted).”  Feldman v. Feldman, 37 Conn.App. 397, 403-04 (1995).

In any custody order, the court is bound by what is in the best interests of the child.  Simons v. Simons, 172 Conn. 341 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260 (1953), Connecticut General Statutes (CGS) § 46b-56.   The court must also give consideration to the preference of a child or children if that child is of sufficient age to be capable of forming an intelligent decision.   The rights, wishes and desires of the parents are also a factor to be taken into account.   Both considerations, however, must be subordinated to the best interest of the child.  Ridgeway v. Ridgeway, 180 Conn. 533, 541 (1980).

Regarding the distribution of property, CGS § 46b-81 states:

In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation.  “Trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings ․ The trial court is granted the authority, pursuant to section 46b-81, to order the sale of the marital home without any act by either the husband or the wife, when in the judgment of the court is the proper mode to carry the decree into effect.

Martin v. Martin, 99 Conn.App. 145, 154 (2007).

Regarding the awarding of alimony, CGS § 46b-82 states:

At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81.   The order may direct that security be given therefore on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate 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 the custody of minor children has been awarded, the desirability of such parent's securing employment.

ORDERS

The court orders the following:

1. The husband shall have sole custody of the minor child.   Neither party shall injure the child's opinion of the other parent by their words or their actions.   Neither parent shall permit any third party to injure the child's opinion of the other parent by their words or their actions.   Neither party shall discuss any adult matters with the child, including but not limited to this trial, or any other court-related matter.

2. The wife shall pay no child support until such time as she is employed or receiving Social Security disability income.   Recognizing that the husband has been and is likely to remain the sole caregiver and financial supporter of the child, the court will make appropriate orders taking those facts into consideration in its property division orders.

3. Neither party shall pay or receive periodic alimony

4. The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to CGS § 46(b)-56c.   The husband shall maintain medical and dental coverage for the minor child as available through his employment at a reasonable expense.

5. Each party will retain their respective vehicles and be responsible for the maintenance, repair and insurance associated there with.

6. Each shall keep their own bank accounts and pay their respective debts on their financial affidavits.

7. The husband shall take the dependency exemption for the minor child so long as he is able.

8. Each shall pay their own counsel fees.

9. The wife shall quit claim all her right, title and interest in the marital premises to the husband.   The husband shall retain the marital residence and be responsible for its expenses, maintenance and insurance.   He shall make good-faith efforts to obtain a mortgage and pay to the wife the sum of $45,000 and $2,500 counsel fees to wife's attorney within 60 days.   If he is unable to obtain said funds, he shall list the residence for sale and upon its sale, pay to the wife 40% of the net proceeds after deducting $150,000 as his pre-marital assets and paying any usual closing costs, attorneys fees and taxes associated with the sale and pay the $2,500 to wife's counsel.   The court will retain continuing jurisdiction regarding the sale.

10. Each party will receive a fair share of the household goods and furnishings.   If no agreement can be reached, the matter shall be referred for mediation with Attorney Robert Clark and each party shall share the expense equally.   His decision shall be final and binding on the parties and enforceable by way of the contempt powers of the court.   The wife must collect said property within 60 days of the arbitrator's decision or forfeit her right to said items.

11. The wife shall be entitled to supervised visitation with the minor child at the Access Agency or other similar professional supervised visitation facility for up to two hours per week at her own expense.   She shall take the responsibility to become familiar with the rules of said agency and abide by the rules and to schedule said appointments.   She shall successfully pass a 5-panel hair follicle test which includes opiate screening and complete six months of sobriety before filing a motion to seek unsupervised visitation.   She shall be entitled to reasonable telephone and Internet access with the minor child.   The wife shall not ingest alcohol or nonprescription drugs while in the child's presence or be under their influence or consume alcohol within six hours of her spending time with the child

12. The payments and obligations referenced in these orders are intended to be family support/maintenance payments within the meaning of sections 523(a)(5) and 523(a)(15) the United States Bankruptcy Code and not dischargeable in bankruptcy.   Each party shall be solely responsible for all debts they have been ordered to pay and they shall hold harmless and indemnify the other thereon.

13. The husband shall retain his 401(k) plan.

14. Both parties shall cooperate with DCF.

15. Dissolution may enter.

Shulger, J.

Shluger, Kenneth L., J.