Lisa M. Ballou v. Terrence J. Ballou (2010)

MEMORANDUM OF DECISION

This is an action for dissolution of marriage which was tried as a limited-contested case on December 16, 17 and 18, 2009.   The parties have previously agreed on child custody and access issues, and that agreement will be approved and incorporated in the orders issued below.   The court has carefully considered all of the evidence, the statutory criteria, and common law pertaining to dissolution of marriage, custody, child support, alimony, assignment of interest in the marital estate, health insurance, life insurance, and attorneys fees.   Based upon the credible evidence, the court finds the following facts and enters the following orders.

The plaintiff, Lisa M. Ballou, whose birth name was Lisa M. Dingee, married the defendant, Terrence J. Ballou, on March 25, 1994 in Rocky Hill, Connecticut.   They have lived in Connecticut for the entire marriage.   The parties have two children:  Abigail Kathleen Ballou, born March 7, 1996, and John Brennan Ballon, born July 21, 1998.   The court has jurisdiction over the matter.   Both parties have resided in the State of Connecticut for more than one year prior to the bringing of the action.   Neither of the parties, nor their children have received any state or local financial assistance.

The plaintiff is 52 years of age, has a high school education, is in apparent good health, and has established an admirable work history.   She was employed at the time of the marriage and has been continuously employed throughout the marriage with the exception of normal pregnancy leaves for the births of the two children and for a brief period of four months in 2006 when she was between jobs.   Despite her lack of a college education, she has worked in office positions of responsibility.   She is currently working as an office manager at HeitKamp, Inc., earning a weekly gross of $1,190.00 and a weekly net of $910.¹  Despite a question raised by the defendant about the reasons for leaving her last employer, she is currently working at her maximum earning capacity.

The defendant is 48 years of age, has a college education, is in apparent good health, and also has an admirable work history.   At the time of the marriage he was in business with his brother where his earnings were roughly equal to those of the plaintiff.   Within a few years he got a job with the Waterbury Fire Department where he has worked ever since, currently as a fire inspector.   Until recently he generally earned less than the plaintiff.   He currently grosses $1,235.81 in regular weekly pay and $196.82 in overtime which translates to a total weekly gross of $1,433 and a weekly net of $1,016.²  He is currently working at his maximum earning capacity.

Both parties brought assets to the marriage or received assets during the marriage from their respective families.   The plaintiff came to the marriage with a condominium which she sold at a profit of approximately $38,000 which was contributed to family finances.   She also had a 401K with a balance of about $20,000 which she still owns.   In 1998-1999 the plaintiff inherited approximately $30,000 from her mother which was used for family expenses.   In 2001 she inherited approximately $35,000 from her Godmother which was contributed to family finances.

The defendant came to the marriage with approximately $18,000 in cash, two motorcycles which were sold for after the marriage for approximately $18,000, and a Mustang convertible sold after the marriage for $8,500.   In 1995 his parents gave him 13.55 acres of land in Bethlehem where the parties built the marital home.   The value of the land at the time of the gift is unknown.   His parents also loaned the parties approximately $200,000 to construct the house.

The plaintiff owns a condominium in Woodbury where she has resided since the parties separated in December 2007.   The condominium has a market value of $180,000 and is encumbered by a mortgage of $33,888 and a home equity loan of $41,000.

The defendant owns the marital home in Bethlehem where he resides.   The property has a market value of $446,000 and is encumbered by a mortgage of $315,000 and a home equity loan of $6,717.

The plaintiff owns a 2005 Mazda vehicle whose loan balance of $7,375 is roughly equal to its value.   The defendant owns a 2004 Ford vehicle with a value of $12,000 and no encumbrances.   Despite the defendant's contrary evidence, the more credible evidence is that the parties own a tractor which has a value of $9,000.

The parties each have furniture and personal property.   There are a few items of personal property remaining in the marital home which the plaintiff would like to retrieve.   The defendant has no objection.

The plaintiff has two 401K plans:  Webster Bank with a value of $9,600;  and Heitkamp with a value of approximately $10,000.   The defendant has a 457 plan with a current value of $30,000, a Webster Bank IRA with a balance of approximately $8,500, and a City of Waterbury pension which has a current value of $126,280.   As a municipal fireman, the defendant does not contribute to social security.   Although he contributed to social security before he became a fireman, his ultimate social security benefit will be sharply discounted to account for his municipal pension.

The parties agree that the marriage has broken down without reasonable prospect of reconciliation, but they disagree about the reasons for the breakdown.   Although neither party has a monopoly on the truth, the credible evidence tips in favor of a finding that the defendant bears more of the responsibility for the breakdown.   Given his very difficult work schedule, he should have been more sensitive to the plaintiff's need to have him home when he was not at work.   In essence, the plaintiff was doing equal work outside the home, and more than her share of the work inside the home.   Instead, the defendant fell into a life-style which put his own activities ahead of his family responsibilities.   This lack of responsibility led to an emotional distance between the parties which grew until the marriage could not be saved.

The defendant now has a live-in girl friend, but the marriage broke down before she came on the scene.   Her presence is significant only in that she lives in the defendant's home with her two children and, although she is employed full-time and receives significant child support, has paid little or nothing toward the upkeep of the home.   Were she to contribute a reasonable sum toward her family's board, the defendant's overall financial picture would be improved.

Both parties violated the automatic orders during the course of this litigation.   The plaintiff withdrew approximately $9,500 from her IRA without permission in order to pay for cosmetic surgery in April 2009.   The defendant withdrew approximately $30,000 from his 457 Plan without permission in March 2009, not all of which was used to pay for usual household expenses and attorney fees.

A major issue which must be addressed is the weight to be given, if any, to a written “Marriage Settlement Agreement” signed by the parties in October 2007, about a month or two before their separation and before this action was commenced.   The parties agreed at that time, without the advise of counsel, that neither party would pay alimony or child support, that each would keep their separate accounts and retirement plans, and that they would equally divide the equity in the house though sale or by payment by the defendant to the plaintiff of $207,000.   The parties arrived at this approximation of one-half of the equity using an appraisal produced by the defendant's co-worker.   The defendant obtained the $207,000 from his parents and paid it to the plaintiff who used the funds to purchase her own condominium where she has lived ever since.

Neither party is attempting to enforce the agreement.   The plaintiff is seeking alimony of $200 per week and child support of $50 per week.   The defendant's proposed orders mirror the agreement but he also is willing to pay the balance of his 457 plan to the plaintiff.   Given the positions of the parties and the changes that have occurred since October 2007, the court will give no weight to the prior written agreement of the parties.

With respect to child support, the parties have true shared physical custody with an equal sharing of physical care and control of the children.   Neither party will be designated as the custodial parent.  “The facts of this case do not fit neatly into the nomenclature of the child support guidelines.”   Wallebeoff v. Wallbeoff, Superior Court, judicial district of Tolland at Rockville, Docket No. 06-4004613 (Frazzini, J., November 3, 2009).   As stated by Judge Frazzini in the Wallebeoff case:  “The Commission for Child Support Guidelines, moreover, has recognized the necessity of crafting support orders in shared custody cases that address the individual contours of each case.”   The court has prepared its own guidelines worksheet, a copy of which will be attached to this memorandum.*   This worksheet assumes that one child lives with each parent so as to reflect the fact that each parent will receive one dependent child exemption for income tax purposes.   Based upon this worksheet, the plaintiff's presumptive support amount is $147 per week and the defendant's is $165 per week.   Offsetting these amounts results in payment of $18 weekly to the plaintiff.

Throughout most of the marriage the plaintiff earned more money than the defendant.   Recently, the defendant's net earnings has grown more rapidly and now exceed those of the plaintiff.   There was no evidence that this inequality will not continue.   Having considered all of the factors necessary for an alimony award, I have concluded that a small periodic alimony award in favor of the plaintiff is appropriate in order to attempt to equalize the net earnings of the parties for a five-year period.

The court orders the following:

1. The marriage is dissolved.

2. The parties shall have joint legal custody of their two minor children.   The parties shall exercise a shared parenting plan with their two children as follows;

a.  The parties will each have the two children with them for parenting time on a one week on, one week off basis.   That is, for the first week, both children shall be with the plaintiff, and in the second week both children shall be with the defendant and alternating weekly thereafter.

b. The exchange of the children between the parties shall be between 7:00 p.m. and 8:00 p.m. on Sunday night.   At that time the children will take to the parent who is receiving the children all of their school work and other personal belongings that they will need to stay with the second parent for the coming week.

c. On Thursday night, the parent who does not have the children that week will obtain the children from the other parent between 5:00 p.m. and 6:00 p.m. on Thursday night and that parent will then keep both children overnight and then either see to it that the children get on their school bus or are delivered to school on Friday morning or are returned to the other parent's home by 9:00 a.m. on Friday morning.

d. Neither parent shall be obligated to provide the right of first refusal to the other parent.

e. The parties' previously agreed upon holiday schedule for the children shall remain in effect.

3. The defendant shall pay to the plaintiff child support in the amount of $18 per week.

4. The defendant shall continue to carry the medical insurance for the benefit of the minor children so long as he is employed by the City of Waterbury.   Any co-pays or unreimbursed medical expenses for the children shall be split:  48% paid by the plaintiff;  52% paid by the defendant.

5. The defendant is ordered to pay to the plaintiff periodic alimony in the amount of $44 per week for a total period of five years from the date of this judgment.   Alimony shall terminate upon the death of either party or the plaintiff's remarriage.   Alimony may be modified or terminated as the circumstances warrant, should the defendant cohabit with another in accordance with C.G.S. § 46b-86(b).

6. The plaintiff shall retain her interest in the Woodbury condominium, free and clear of any claims of the defendant.   The plaintiff shall be solely responsible for all of the expenses associated with that asset.   The defendant shall retain his interest in the Bethlehem house, free and clear of any claims of the plaintiff.   The defendant shall be solely responsible for all of the expenses associated with that asset.

7. The plaintiff shall retain the retirement plans shown on her financial affidavit, free and clear of any claims of the defendant.   The Defendant shall retain his City of Waterbury pension free and clear of any claims of the plaintiff.   The defendant shall transfer to the plaintiff the entire balance of his Webster Bank IRA and of his 457 Plan at the time of transfer, by Qualified Domestic Relation Order if necessary, which order shall be prepared by plaintiff's counsel at plaintiff's expense.   The court retains jurisdiction to enforce this provision.

8. The parties shall be responsible for the payment of the debts listed on their own financial affidavits, except that the plaintiff shall be responsible for payment of the Waterbury FFCU loan in the amount of $7,375.76 shown on the defendant's financial affidavit.

9. The court will retain jurisdiction to issue an educational support order in the future.   There is no doubt that the parties would have provided support to their two children for higher education if the family were intact.

10. The plaintiff is ordered to amend her 2008 tax return to take only one dependent child exemption.   Beginning with the 2009 tax year, the parties shall each be entitled to take one dependent child exemption until only one exemption is available, at which time the parties shall alternate the one exemption, with the plaintiff taking the first year.

11. Neither party shall be required to provide life insurance for the benefit of the other party.

12. The parties shall be responsible for the payment of their own counsel fees.

13. The parties will retain their own vehicles, free and clear from any claims of the other.   The defendant will retain the tractor free and clear of any claims of the plaintiff.

14. The parties will retain the personal property in their possessions.   However, the plaintiff shall be entitled to remove from the marital home the personal property which belongs to her, including her family antiques.

BY THE COURT,

Pickard, J.

FOOTNOTES

FN1. See the Child Support Guidelines Worksheet attached..  FN1. See the Child Support Guidelines Worksheet attached.

FN2. See Child Support Guidelines Worksheet attached.*Editor's Note:  The above referenced attachment has not been reproduced herein..  FN2. See Child Support Guidelines Worksheet attached.*Editor's Note:  The above referenced attachment has not been reproduced herein.

Pickard, John W., J.