Mary Hiller v. Donald Hiller (2010)

MEMORANDUM OF DECISION

The parties were married in Winsted, Connecticut on December 24, 2004.¹  The plaintiff wife is forty-two years old and the defendant husband is forty-eight years old.   No children were issue of the marriage.   Both parties have lived in Connecticut continuously at least one year prior to the dissolution.   The parties have lived separately since May or June of 2007.   Prior to the marriage the defendant husband built or had built his present home.   He was and now again is presently employed as a car salesman.   From 2004-2006 the defendant earned an average of $55,000/year.   At the onset of the marriage the plaintiff worked at various restaurants as a waitress, earning approximately $350/week or approximately $18,000/year, she owned no real estate and entered the marriage with a poor credit rating and debt.²  Nonetheless, the defendant acquiesced to the plaintiff's request that she assume responsibility for the parties' finances.³  Commencing in 2006 the plaintiff took charge of the couples' finances and she opened new credit card accounts in the defendant's name.   The plaintiff testified the defendant was aware of the fact that she was transferring outstanding credit card debt to various credit cards and he was aware of her use of the credit cards.   The defendant testified he was completely unaware of three new credit card accounts that the plaintiff opened under his name and which she was an authorized user.   The three credit cards at issue are a Bank of America (BOA) credit card, a Discover credit card and a Capital One credit card.

Prior to the plaintiff taking over the parties' finances the defendant possessed only one credit card, a Chase credit card.   Once married, he allowed the plaintiff to retain physical possession of the sole Chase card so that when she was traveling she would have it at her disposable.   The defendant credibly testified that he never accessed his bank account using an ATM card nor did he physically possess any credit card.   During the time the parties were together the plaintiff did not have her own banking or checking account nor did she have any credit cards in her name.

In addition to the above credit cards, the defendant had a zero balance on a home equity line of credit at the time of the marriage.   Of the $40,000 that accrued on the equity line during the time the married parties were together, $18,000 was, by agreement of both of the parties, spent on hardwood floors and furniture for the house.   The defendant contends that at least another $12,000 was incurred by the plaintiff by writing checks without his permission or knowledge.   One such check written by the plaintiff in the amount of $6,750 was a loan to her brother.   The defendant testified the plaintiff eventually repaid only approximately $1,300.

Unlike the plaintiff, the defendant was not familiar with paying bills electronically.⁴  Even after the parties separated in May of 2007 the plaintiff continued to remain involved in the defendant's finances.   The defendant only learned about the three credit cards existence after he started receiving collection calls in the latter half of 2007.⁵  Initially he believed he had been the victim of identity theft.   In 2009 the defendant filed third-party complaints against the plaintiff regarding at least two of the three disputed credit cards.   Said litigation remains pending.⁶

The plaintiff claims the existence and use of the defendant's credit cards was joint marital use and/or defendant use and only $5,000 of the approximate $50,000 in outstanding balances should be attributable to her.   The defendant claims he received no benefit from the credit card expenditures and he should only be responsible for the $2,470 purchase on the Discover Card for a Quad vehicle.

The court finds that it has jurisdiction over the present action and all statutory stays have expired.   The court also finds that the marriage has broken down irretrievably.   The marriage is hereby dissolved and the parties are declared to be single and unmarried.   After considering all of the statutory criteria set forth in C.G.S. § 46b-82, as to the assignment of alimony, C.G.S. § 46b-81 as to assignment of property and transfer of title, C.G.S. § 46b-66a, as to conveyance of property, C.G.S. § 46b-62, as to counsel fees, C.G.S. § 46b-63, as to restoration of former name, as well as the applicable case law and the evidence presented at trial, the court enters the following additional orders:

Alimony

Neither party shall receive alimony from the other.

Name Change

The plaintiff's maiden name of Hultgren shall be restored.

Marital Home

The marital home remains the sole possession of the defendant.   He shall be responsible for the expenses associated with the home, including the mortgages and the home equity line of credit.⁷

Motor Vehicles

Each party shall retain possession of their individual motor vehicles and be responsible for the costs associated with said vehicle.   The other party shall be indemnified and held harmless as to the expenses associated with the other's motor vehicle(s).

Attorney Fees

Each party shall be responsible for their own attorney fees.

Debt

Clearly the fiscal stability the defendant enjoyed prior to his marriage quickly evaporated under the plaintiff's fiscal management.   The plaintiff recklessly incurred expenses well beyond the parties' financial means.   Whatever the plaintiff wanted or needed she found a way to get it.   The purchase, lease and upkeep of a horse, clothes, gifts, dinners out-anything and everything was possible with the use of the credit cards.   Her claim regarding her personal share of the debt equally $5,000 to $6,000 is not credible.⁸  Her computer knowledge and familiarity with online banking and electronic bill paying allowed her to use the defendant's good credit rating to spend money she did not have to spend.

The defendant's claim that he knew nothing about the existence of three of the credit cards is credible.   Nonetheless he bears responsibility for negligently handing over total fiscal control to the plaintiff.   The defendant knew or should have known about the plaintiff's poor fiscal history.⁹  At some point the defendant should have been questioning the amount of spending and he should have been more vigilant regarding the plaintiff's unfettered access to his individual checking account.¹⁰

Accordingly, the court orders that the plaintiff be responsible for sixty five percent and the defendant be responsible for thirty five percent of the outstanding credit card debt on the four credit cards in question, Bank of America, Discover, Capital One and Chase credit cards.¹¹  Each party shall be responsible for any of the other individual debt listed on their financial affidavit and the other party shall be indemnified and held harmless.

Bernadette Conway, Judge

FOOTNOTES

FN1. The parties cohabited in the marital home prior to their marriage..  FN1. The parties cohabited in the marital home prior to their marriage.

FN2. The plaintiff incurred student loans in the late 1980s or early 1990s.   In 2005 the defendant withdrew money from his 401k and paid off the student loans.   The plaintiff's other premarital fiscal issues involved outstanding medical bills and bounced checks..  FN2. The plaintiff incurred student loans in the late 1980s or early 1990s.   In 2005 the defendant withdrew money from his 401k and paid off the student loans.   The plaintiff's other premarital fiscal issues involved outstanding medical bills and bounced checks.

FN3. As will be discussed in greater detail shortly, the defendant testified he was unaware of the plaintiff's prior financial irresponsibility.   But given that the plaintiff did not or could not have any credit cards or checking accounts in her name and his payment in 2005 of her 1980s or 1990s debt, the defendant did know or should have known the perils of entrusting the plaintiff with the marital finances..  FN3. As will be discussed in greater detail shortly, the defendant testified he was unaware of the plaintiff's prior financial irresponsibility.   But given that the plaintiff did not or could not have any credit cards or checking accounts in her name and his payment in 2005 of her 1980s or 1990s debt, the defendant did know or should have known the perils of entrusting the plaintiff with the marital finances.

FN4. It appears that the three credit cards in dispute, BOA, Discover and Capital One were primarily paid electronically..  FN4. It appears that the three credit cards in dispute, BOA, Discover and Capital One were primarily paid electronically.

FN5. The defendant cancelled all existing credit cards in September of 2007..  FN5. The defendant cancelled all existing credit cards in September of 2007.

FN6. The plaintiff claims she was the victim of physical and sexual abuse perpetrated by the defendant on more than one occasion.   Because criminal cases are pending the court declines to elaborate about the alleged facts surrounding the domestic violence in the marriage except to say that said alleged violence is not a factor in the court's ultimate findings in this case..  FN6. The plaintiff claims she was the victim of physical and sexual abuse perpetrated by the defendant on more than one occasion.   Because criminal cases are pending the court declines to elaborate about the alleged facts surrounding the domestic violence in the marriage except to say that said alleged violence is not a factor in the court's ultimate findings in this case.

FN7. No testimony or evidence was presented regarding any equity in the home that may have accrued during the course of the marriage.   Given that the defendant shall be responsible for any outstanding balance on the HELOC any equity that arguably may have accrued to the plaintiff's benefit is offset by the defendant's responsibility for the HELOC balance..  FN7. No testimony or evidence was presented regarding any equity in the home that may have accrued during the course of the marriage.   Given that the defendant shall be responsible for any outstanding balance on the HELOC any equity that arguably may have accrued to the plaintiff's benefit is offset by the defendant's responsibility for the HELOC balance.

FN8. The plaintiff's credibility concerned the court.   For example, prior to her separating from the defendant she portrayed to her family she had completed her nursing education and was employed making $40,000/year, when in fact did not graduate until 2008 and she has yet to take the necessary licensing tests.   She claimed to have been a victim of the defendant's serious and violent behavior but with the defendant facing domestic violence felony charges, she elects to appear at his house and while waiting for him she decides to go naked into the hot tub..  FN8. The plaintiff's credibility concerned the court.   For example, prior to her separating from the defendant she portrayed to her family she had completed her nursing education and was employed making $40,000/year, when in fact did not graduate until 2008 and she has yet to take the necessary licensing tests.   She claimed to have been a victim of the defendant's serious and violent behavior but with the defendant facing domestic violence felony charges, she elects to appear at his house and while waiting for him she decides to go naked into the hot tub.

FN9. See footnote 2..  FN9. See footnote 2.

FN10. Additionally the court has reviewed the monthly expenses listed on the credit card statements put into evidence.   Although many of the entries can be attributed directly to the plaintiff and her spending decisions other entries are arguably attributable to both parties..  FN10. Additionally the court has reviewed the monthly expenses listed on the credit card statements put into evidence.   Although many of the entries can be attributed directly to the plaintiff and her spending decisions other entries are arguably attributable to both parties.

FN11. There was a significant amount of trial time consumed with questioning both parties as to the specific transactions on some of the credit cards.   The lack of documents relating to the Chase credit card and the Capital One card does not render this court unable to decide who should be responsible for the outstanding balances.   Again, the defendant's testimony regarding his use or lack of use of the cards was credible whereas the plaintiff's credibility is suspect.   The court thereby divides the responsibility for the outstanding balances accordingly..  FN11. There was a significant amount of trial time consumed with questioning both parties as to the specific transactions on some of the credit cards.   The lack of documents relating to the Chase credit card and the Capital One card does not render this court unable to decide who should be responsible for the outstanding balances.   Again, the defendant's testimony regarding his use or lack of use of the cards was credible whereas the plaintiff's credibility is suspect.   The court thereby divides the responsibility for the outstanding balances accordingly.

Conway, Bernadette, J.