Kimber Rundlett v. Dale Rundlett (2010)

MEMORANDUM OF DECISION

The plaintiff who was a resident of Pawcatuck, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on June 3, 2008.   At the time, the defendant was a resident of Pawcatuck, 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 May 7, 12 and 17, 2010.   Both parties appeared at trial and were represented by counsel.   The parties were given until May 21, 2010 to file briefs.

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 whose maiden name was Barnett were married on May 26, 1990 at Sedalia, Mo.

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 was one child born to the wife since the date of the marriage;  namely, Emily Rundlett born March 16, 2000.   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 parties met during college.   The wife obtained a Ph.D. in Chemistry and the husband obtained a BS in Engineering.

7. At the time of the marriage, the parties had few assets and most of the marital estate was accumulated during the course of the marriage.

8. During the marriage, the wife out-earned the husband and continues to do so by approximately $100,000.   She performed the majority of household and child-rearing tasks and accumulated most of the savings.   The husband spent a good deal of time with golf, TV, movies, video gaming and softball games.   He has an untreated anger problem and is given to occasional outbursts.   The cause of the dissolution is found to be primarily his.

9. The parties have been separated since September 2008 with the husband vacating the marital residence for the child's benefit.   Both parents have strengths and weaknesses but the child appears to be bonded more closely with the mother.   The father's parenting time is often spent not actually interacting with the child.   The court finds that the father does not need to have more time with the child but needs to make better use of the time that he has with her.   In other words, he needs to spend more quality time rather than have a greater quantity of time.   The parties have been enjoying a temporary parenting plan which is working well but could use some modifications to give Emily more stability, fewer transitions and a primary residence with her mother.   Emily does not adapt well to changes.   The father seeks a rather dramatic change to the present parenting plan which would call for the child to spend an equal number of nights at each home and transitioning back and forth continuously (Exhibit 3).   The father also requests to have a dinner with the child during the mother's weekend, a proposal which the court finds to be disruptive to the child's own schedule and not in her best interest.

10. The mother seeks to maintain the existing parenting plan with the father having alternate weekends from Friday after school until Sunday evening and every Tuesday after school until Wednesday at school and every Thursday after school until 8 p.m., which is essentially the recommendation of the Family Relations counselor.

11. The Guardian ad litem recommended that the report of the Family Relations officer be adopted except that the father not have a dinner with the child during the mother's weekend as it is disruptive and hard to plan around.

12. There presently exists as marital assets the marital home which the court finds to be worth $375,000 with a $170,000 mortgage.   This is based on the more credible testimony of James Blair, the plaintiff's appraiser whose opinion was strengthened by his having compared the marital residence with a home at 118 Castle Rock, in the same neighborhood which was listed at $399,000 and just sold.

13. In addition, there exists as assets three motor vehicles, home furnishings, bank accounts and retirement accounts valued at approximately $632,000, Pfizer restricted stock and stock options, $67,000 in accounts set aside for the minor child, a defined benefit plan at Pfizer, a defined benefit plan at General Dynamics, personal property in the possession of the wife valued at approximately $8,000, and personal property in the possession of the husband valued at approximately $32,000.

14. The parties' debt includes the husband's $18,437 of credit cards and medical bills, most of which is attorney fees and vacations all accumulated after the separation.

15. The wife is employed at Pfizer earning $3334 per week or $173,000 per year.   The husband is employed at General Dynamics earning $1473 per week or $76,600 per year.

16. The parties stipulated and agreed that they should have joint custody of their child, that the wife would remain in the marital residence, that the wife's proposed holiday and vacation schedule was agreeable, that the parties would share equally their retirement accounts and non-retirement accounts, equalized by the wife paying to the husband $3946, so that each would have approximately $316,255 in assets (aside from real estate, Pfizer stock and stock options and pensions), that each would keep their autos and that each would retain their checking and savings accounts which are small.

17. The father is presently paying child support in the amount of $133 per week.   The child support guidelines suggest that his obligation is $137 per week and that he pay 27% of any unreimbursed medical or day care expenses.

18. The wife is 47 years old and the husband is 48 years old and both are in good health.

19. The child presently attends the Pine Point School, an excellent private school which she has attended since kindergarten.   She is presently in the fourth grade and is a lovable and wonderful child.   It would be in her best interest to continue in this school through the ninth grade.   The mother supports this position.   The father believes that it is unaffordable given its cost of approximately $20,000 per year.

20. 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 child 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 § 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, Connecticut General Statutes § 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 in value of their respective estates.

The court in Krafick v. Krafick, 234 Conn. 783 (1995), held that the purpose of sec 46b-81 was “to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute-directly and indirectly, financially and nonfinancially-the fruits of which are distributable at divorce.”  Id., 797-98.  Ranfone v. Ranfone, 103 Conn.App. 243, 250-51 (2007).

The court in Picton v. Picton, 111 Conn.App. 143 (2008), held that “an equitable distribution of property should take into consideration [each spouse's] contributions to the marriage, including homemaking activities and primary caretaking responsibilities”;  id., 311;  and that “a determination of each spouse's contribution within the meaning of ․ § 46b-81 includes nonmonetary as well as monetary contributions.”  Id. 153.

“A court may accept or reject such evaluations in whole or in part and ascribe its own valuations to real estate ․ The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder.  Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 430-31 (1987).”  Martin v. Martin, 90 Conn.App. 145, 150 (2007).

Regarding the awarding of alimony, Connecticut General Statutes § sec 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 parties shall enjoy joint custody of the minor child with primary residence with the mother.   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 father shall have access every other weekend from pick up after school Friday until drop off at school Monday morning, every Tuesday from pick up at school until drop off at school Wednesday morning and every Thursday from pick up at school until drop off at ballet.

A. Holidays and Birthdays

i. Father shall have the child from after school or 2:30 p.m. until 7:00 p.m. on Father's Day and Father's birthday.

ii. Mother shall have the child from after school or 2:30 p.m. until 7:00 p.m. on Mother's Day and Mother's birthday.

iii. Father shall have the child on the child's birthday from 2:30 p.m. until 7:00 p.m. in odd-numbered years and Mother in even-numbered years.

iv. Father shall have the child on Easter day from 10:00 a.m. to 7:00 p.m. in even-numbered years and Mother in odd-numbered years.

v. Father shall have the child for Thanksgiving from after school on Wednesday through to Friday at 7:00 p.m. in odd-numbered years and Mother in even-numbered years.

vi. Father's typical weekly access schedule weekend shall be extended through to 3:00 p.m. for those Monday holidays (e.g., Presidents' Day, Martin Luther King Day, etc.) observed by the school Emily is currently attending, which holidays are not otherwise specifically addressed herein.

B. Vacations and School Recess Periods

i. With regards to the child's Christmas School recess, so long as the child attends Pine Point and has two weeks off, the parties shall evenly divide the break as follows:

In all even-numbered years, the child shall be with Mother from the day school lets out until December 24th at noon and then again on December 25th at noon until December 26th at noon.   In all even-numbered years, the child shall be with Father on December 24th at noon until December 25th at noon and then again on December 26th at noon through the Friday before school resumes.   The weekend before school resumes will be spent in accordance with the normal rotation of weekends.   In all odd- numbered years the schedule delineated above will reverse.   Should the child's school break be only one week long the parties shall continue to alternate the Christmas Eve/Christmas Day holiday and shall divide equally the time off.

ii. In odd-numbered years, Mother shall have the child during the Winter recess from school for the weekdays of that recess.   In even-numbered years, Father shall have those weekdays.

iii. In odd-numbered years, Father shall have the child during the Spring recess from school for the weekdays of that recess.   In even-numbered years, Mother shall have those days.

iv. In the event, the child is matriculating in a school that allows for two (2) weeks recess during the Spring and/or Winter recesses, then the parties shall each have one such week or weekdays with Father having the first of those weeks in odd years and Mother the first of those weeks in even years.

v. Both parties shall have the child with them for two (2) weeks vacation during the child's summer recess from school.   For these purposes the term “week” is defined as consisting of five (5) day consecutive weekdays;  i.e., Monday through Friday.

Those two weeks shall be nonconsecutive from now until the child's fourteenth (14th) birthday, thereafter those weeks may or may not be consecutive at the election of each parent with respect to their own vacation plans.   However, in all events, the vacation plans shall not interfere with the Typical Weekly schedule of weekends.

Each parent shall advise the other in writing via e-mail no later than February 15th of each year relative to the dates they plan to have the child with them on vacation.   If the parties cannot reconcile any conflict in their respective summer vacation schedules, then Mother's schedule shall prevail in all even-numbered years and Father's in all odd-numbered years.

Mother and Father both work full time, necessitating that the child be with one or the other of them “on” vacation or enrolled in a camp program in lieu of day care.   In as much as Mother shall be responsible for scheduling the child's summer camp activities, it is essential that Father advise Mother of his vacation plans no later than the February 15th deadline.   Should Father fail to do so, then Mother shall, on or before February 28th, advise Father of those two weeks most convenient to her and to the child for Father to exercise his summer vacation access.   Should Father fail to confirm with Mother by e-mail on or before March 15th of his decision to utilize the two weeks she proposed, then he shall have forfeited his two weeks summer access time and shall be solely responsible for the cost of the camps for those additional two weeks time.

C. Unspecified Periods of Time

Mother shall have the child in her care and custody at all other times not otherwise expressly specified herein as Father's time.

D. Schedule Priorities

Both parties have endeavored to preserve and maintain the most consistent and reliable schedule possible out of recognition that this child does better with constancy versus variability.   Therefore, the first priority is that the schedule of alternating weekends be interrupted the least number of times possible and only those few holidays and special occasions referenced herein shall have priority over the typical weekly alternating weekend schedule.   The parties' observance of those few holidays and special occasions shall supersede as opposed to interrupt the Typical Weekly alternating weekend schedule.   Thus, the observance thereof shall not reset the calendar relative to the Typical Weekly alternating weekend schedule.

In the event due to the demands of their employment or other cause a parent with access during any Vacation and School recess periods cannot be available to the child during the entirety of that time, he or she shall forfeit that additional access time and the Typical Weekly Schedule shall appertain.

E. Substituting Access Times

These parties recognize that there may be family related special event(s) (e.g., a wedding, anniversary party or birthday) that are significant to one party, but which are scheduled to occur during the other party's access time.   On those occasions, the requesting party shall arrange to provide the responding party with make up time which make up time shall occur

i. in advance of the special event,

ii. at such time as is convenient for the responding party, and

iii. shall be equivalent in nature, meaning that the make up time shall be weekday day for weekday day and weekend day for weekend day.   Such requests shall be made via e-mail communications so as to avoid any later confusion or dispute in this regard.   Such times shall be for the day commencing at 8:00 a.m. and concluding at 8:00 p.m. Said requests shall not be made more than three (3) times, nor more than four (4) consecutive days with respect to any one such request, nor more than six (6) days total in any one calendar year.   The responding party shall make all reasonable efforts to accommodate the requesting party.   This provision shall not apply to the holiday schedule, nor to the vacation schedule, which can only be “substituted” upon mutual agreement of the parties, which agreement shall be in writing to avoid later disputes.

F. Miscellaneous Provisions

i. On those days when the child does not attend school due to illness or the school is closed due to inclement weather, the child shall remain in that parent's care with whom she had spent the preceding evening until 3:00 p.m. of that “sick” day or “snow” day.

ii. Each party shall at all times maintain a working cell phone to facilitate communications relative to the child.

iii. Each party shall at all times keep the other party informed of all telephone numbers by which they can be contacted, the names and addresses of their current employers and of the street and mailing addresses of their current residences and of their e-mail addresses.

iv. Neither party shall remove the child from the state of Connecticut for more than thirty-six (36) consecutive hours without first advising the other party by e-mail of their itinerary, including destinations and means of travel.

v. Both parties shall allow the child telephone contact with the other parent at such times and for such duration as the child may request, unless and until the child abuses that privilege and it becomes a discipline issue.

vi. Neither party shall deny the other telephone contact with the child at reasonable times, reasonable frequency and for reasonable duration.

vii. Neither party shall remove the child from the contiguous forty-eight states that comprise the United States of America without the other party's prior written consent.   Such consent shall not be unreasonably withheld.

viii. Should either party intend to relocate their residence, they shall give the other party no less than ninety (90) days prior written notice by e-mail.   Said notice shall include the date of the intended move, the street and mailing address of the proposed new residence, and the reason for the relocation.   Such notice shall only be effective if the sender has proof of receipt of said notice by the proposed recipient.

3. The husband shall pay child support to the wife in the amount of $100 per week and the parties shall divide any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or work related day care costs, 30% payable by the husband and 70% payable by the wife.   This is a downward deviation from the presumptive $137 in view of the father's more than usual time with the child.

4. The wife shall pay alimony to the husband in the amount of $200 per week for 8 years.   Said alimony will terminate upon the earlier of 8 years, the death of either, or the husband's co-habitation, remarriage or civil union.   Other than for these events, it is modifiable as to amount only.

5. The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to CGS § 46(b)-56c.

6. Plaintiff Mother will continue to qualify the daughter as a covered insured under her current or any equivalent medical care policy or plan offered by her employer for so long as such coverage is available to her at a reasonable cost.   Defendant Father will continue to qualify the daughter as a covered insured under his current or any equivalent dental care policy or plan offered by her employer for so long as such coverage is available to her at a reasonable cost.

7. Each party shall retain the personal property in their possession but the husband may have the lighthouse painting and the riding lawnmower.

8. The husband shall quit-claim to the wife the marital home and the wife shall use her best efforts to re-finance the home mortgage in her own name forthwith.   Upon said refinance, she shall pay to the husband the sum of $100,000, which the court computes as 1/2 of the net equity with a $2500 allowance for costs of refinance.   If she is unable to refinance said mortgage within 120 days, she shall execute to the husband a note in said amount plus 4% per year interest secured by a mortgage on said home payable upon her re-marriage or civil union, the death of either party, her ceasing to use said home as her primary residence or upon the high school graduation of the minor child, whichever is first.   Said debt shall not be dischargeable in bankruptcy.   She shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the husband harmless and indemnify him for any such expenses.

9. The husband shall retain his 2002 Toyota and 1995 Nissan truck and the wife shall retain her 1999 Toyota vehicle.

10. The parties shall each receive 50% of the value of the investment accounts as set forth just below:  Husband shall hereafter own free and clear of any claim by Wife the following accounts.

Gen. Dynamics 401K account $200,301

Fidelity Traditional IRA account # ․ 5372 $ 15,726

Fidelity Rollover IRA account # ․ 2177 $ 17,665

Fidelity Roth IRA account # ․ 2144 $ 17,172

ING Mutual Fund account # ․ 72-01 $ 5,130

Fidelity IRA account # ․ 2136 $ 16,237

Fidelity Roth IRA account # ․ 5062 $ 15,025

Pfizer Stock Account # ․ 8390 $ 10,107

Ledge Light Money Market acct # ․ 5990 $ 14,946

Plus Cash Payment from Wife to equalize amounts $ 3,946

$316,255

All transfers of accounts from Wife to Husband shall be by way of QDRO. Wife shall be solely responsible for the preparation of said QDROs but the parties shall share the cost.   Husband shall receive said accounts subject to market fluctuations.

Wife shall hereafter own free and clear of any claim by Husband the following accounts.

Pfizer 401K account # ․ 8038 $286,048

Ledge Light Certificate of Deposit # ․ 2683 $ 25,913

Ledge Light Money Market acct # ․ 2683 $ 8,240

Minus Cash Payment from Wife to equalize amounts ($ 3,946 )

$316,255

Wife shall make said cash payment to Husband within thirty (30) days of the date that judgment enters in this matter.

11. Regarding the wife's Pfizer Restricted Share Units and Pfizer Stock Options they are not vested and/or the strike price is greater than the market price.   Thus they are currently of no or only speculative value.   Given those facts, the wife shall pay over to husband fifty (50%) percent of her “net proceeds” (i.e., the sum remaining after the payment of all taxes and costs of sale associated with said RSUs and Options) derived from the sale of said stock.

12. Each shall keep their own bank accounts.

13. The parties shall alternate the dependency exemption with the wife taking even years.

14. Each party may retain their respective pension plan through their employment with no claim by the other.

15. Each shall pay their own counsel fees.

16. The parties shall pay the GAL fees with the wife paying 70% and the husband paying 30% within 60 days.

17. The wife shall maintain her current $1,000,000 life insurance for the benefit of the child and the husband shall use his best efforts to obtain and maintain $100,000 (in addition to the death or dismemberment policy) until the child reaches 23 or completes college, whichever shall occur first.

18. Defendant Husband shall be responsible for 30% of the child's tuition and Plaintiff Wife shall be responsible for 70% of the tuition and all other reasonable and necessary costs associated with the child's matriculation at Pine Point School.   She shall stay enrolled at Pine Point until graduation or until the parties mutually agree to a change.

19. Should either party advance the full cost for any of the foregoing expenses;  i.e., medical expenses, day care expenses and education expenses, then the other party shall have thirty (30) days from the date of being presented with documentation confirming such payment to reimburse their pro rata share of that expense(s) to the party whom advanced said payment.   Absent exigent circumstances, which ever party incurs a medical expense that would otherwise have been a covered and/or an insured expense and thus subject to payment by the child's then health and/or dental insurance provider, which expense was disqualified because of the failure of that party to observe the plan's rules and/or prerequisites to coverage, then that party shall be solely liable for the full amount of that expense(s).

20. The wife may control the child's CHET and UGMA accounts to be held for the benefit of the child for her post-majority educational support.   If the child is not in need of said funds for whatever reason, said funds will go to the child's own use upon her 23rd birthday.

21. 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) of 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.

21. The wife's birth name, Barnett is restored.

22. The wife may retain the Roy Rogers collection.   The husband may retain the coin collection.

23. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.