Paula Homiski v. Stephen Homiski (2010)

MEMORANDUM OF DECISION

This action, seeking a dissolution of marriage, presents the issue of how to do equity between two parents who have two special needs children.

The court finds that plaintiff (whose maiden name was Wade) intermarried with the defendant on July 20, 1991, in Taunton, Massachusetts.   This court has jurisdiction of her action for dissolution, all statutory stays have expired, and the defendant, having been personally served with process, has appeared herein and was present at trial with his counsel.

The court further finds that the marriage has broken down irretrievably.

The parties have two children issue of the marriage, namely Kevin Homiski, born March 1, 1996, and Lauren Homiski, born October 22, 1991 (Although Lauren's age is now 18, Conn. Gen.Stat. § 46b-84(c) permits this court to make provisions for her support at this time on account of the mental disability described below).

I. Custody

The parties submitted a parenting plan dated March 17, 2010, ostensibly resolving the issue of Kevin's custody.   Each described this plan as being in his best interests, and yet through their testimony it became apparent that they have not come to full agreement as to certain key terms.

Kevin suffers a severe form of autism, and requires continuous care both to tend to his needs and to protect him from harming himself.   He is a special education student in a twelve-month program at Griswold Middle School.   He has special dietary needs, and sometimes is incontinent, necessitating midday showers or bathing.   Routinely he leaves for school at 8 a.m. and returns home around 3 p.m. when school is in full session, but at 1:30 in the summer months.

Although Lauren is of the age of majority, she, too, suffers from autism.   She has the mental capacity of an 8-year-old.   She is a student at Griswold High School, also in a special education program.   It is obvious that she will reach age 21 before she achieves any true personal autonomy.   Her hours at school resemble her brother's.

Given their health diagnoses, both children are clients of the state's Department of Mental Retardation.

Both children require supervision at all times they are at home.   The plan which the parties propose would allow them joint legal custody of both children, who would primarily live with plaintiff but who would visit with defendant on a defined schedule.   Both parents are capable and caring and neither gave this court cause to worry about the safety or well-being of the children no matter in whose company they might be at any given moment.

In theory, their plan is feasible.   Defendant works an evening shift, and commits himself to being available each Wednesday from the time school ends for the children until the time plaintiff might expect to return home from work.   She has no job at present, but anticipates a school-year daytime position.   Because it is unlikely that her job would correspond precisely with the hours that Lauren and Kevin are dependably in the care of other adults, she needs him as her backup on Wednesdays;  she has made other plans for the other days of the week.   She thus views defendant's “access time”, at least on Wednesdays, as his duty, which, if he shoulders it, would permit her to commit to the time requirements of a job outside the home.   Defendant, instead views this time as a privilege which he may forego if other opportunities present themselves.   To his credit, the court notes that the specific opportunity which has most commonly caused him to not show up is his answering to his employer's call for him to work overtime.   This reflects his value to his employer, and is also helpful to the family's finances.   However, it has the unavoidable effect that she cannot count on his presence, and is accordingly hobbled in her own job search.

Since each party is a competent caretaker for the children, their dispute does not truly involve the children's best interests, but instead the economic interrelationship of the parties as impacted by the demands created by the children's situation.   Accordingly, the court is inclined to approve their plan and deal with the question of caretaking for the children as an economic issue recognized by the statutes authorizing financial orders as discussed below.

II. Financial Issues

The parties disagreed as to property settlement and debt allocation, and as to alimony and child support.   The court has analyzed the evidence in light of the criteria of Conn. Gen.Stat. §§ 46b-81, 82 and 84.

This is a first marriage for plaintiff and a second for defendant, and has lasted almost nineteen years.   The parties separated in March of 2009.   While defendant admits to now cohabiting with another woman, plaintiff does not contend that this relationship was the cause of the marital breakdown as much as a symptom of its irretrievability.   The court finds that the marriage has broken down irretrievably, and that the cause of the breakdown is not attributable to fault on the part of either party.

Plaintiff is 44 years old.   For much of the marriage years she has worked part or full-time out of the house, most recently for Mosaic, Inc., an organization serving people with intellectual disabilities.   Over the years of the marriage her annual earnings have ranged from $6000 to $25000.   She is currently unemployed, and seeking a position in a local school which would provide her with hours similar to those of the children.   She expects that she might earn up to $15 per hour, but for fewer than 40 hours per week.   She is currently suffering from insomnia, anxiety, depression, and fatigue.   She did not claim that these conditions are disabling.   Her maximum earning potential, given her background and the market in which she is seeking a job, would be $30,000 per year;  it is realistic to assume that in light of her caretaking duties, which will limit her availability, her actual earnings will not exceed $20,000 per year.   There is no reasonable basis upon which to assume that her long-term prospects have much upside potential.

Defendant is 47 years old and suffers from medicinally-controlled hypertension and high cholesterol.   For more than 12 years the State of Connecticut Department of Mental Retardation has employed him as a group-home worker.   He works the evening shift and has a base pay rate of $25.70 per hour, or about $47,000 per year.   In the past four years, substantial overtime has pumped his average earnings up to just under $100,000.   At trial he contended that overtime will be less available in the future, while plaintiff argued that the past is a reliable predictor of the future.   The court finds that it is reasonable to expect that he will continue to have overtime available in the amount of at least eight hours per week.   With “time and a half” his hourly rate past the fortieth hour is almost $40, so this additional eight hours per week adds approximately $320 weekly to his expected weekly gross, or $16,000 per year.   The orders set forth below thus assume that he has an annual earning capacity of $63,000.   There is no reason to expect that he will change jobs before retirement.

Additional assistance in caring for Lauren and Kevin has been available to the parties to in the form of state grants and Social Security Administration allotments.   The grants, provided by the Department of Mental Retardation at the beginning of 2008, have amounted to $7000 per child, in kind, spread over two calendar years.   At this time, it appears that both grants are exhausted, but plaintiff is pursuing a renewal of each.   Kevin was declared eligible for monthly SSI benefits of $674 in November of 2009, but that terminated in the early part of 2010 when an alimony order entered.   Also in November, Lauren, being over 18, qualified for SSI in the amount of $450 per month;  because of her age, this is apparently not affected by the alimony award, but may be retracted by the Social Security Administration if a child support order earmarked for her is made.

The parties' assets include the marital home in Griswold, now occupied by plaintiff, with equity of between $125,000 and $135,000.   Defendant has a 401K account worth approximately $5000.   Each party has cash of less than $1000;  defendant possesses a 2007 vehicle, and plaintiff a 1999 vehicle, but their net values are almost the same.   Defendant has vested rights to a defined benefit state pension, the value of which was not computed by the parties;  he cannot retire under normal circumstances for another thirteen years.

The parties also have substantial debts.   Plaintiff owes a Discover Card bill of $4000, personal debts to family members of $4100, and legal fees of $8100.   Defendant owes Home Depot, Walmart, and Bank of America more than $24000 on three credit cards.   The exhibits submitted demonstrate that at various times during the pendency of this case the home mortgage has been allowed to lapse and shutoff notices were sent by the telephone and water companies.   Given the relatively healthy income stream of this family, the parties' obvious inability to maintain solvency, which has jeopardized their credit ratings and the very security of their household, is incomprehensible.   The court makes this observation not to scold them, but to illustrate the difficulty it faces in doing justice between them when it seems that the means of their avoiding their present financial crisis has been within their reach all along.

In addition to all these measurable facts, this case is one in which the often-elusive factor of “station” of the parties is significant.  Rubin v. Rubin, 204 Conn. 224 (1987), defined “station” as “social standing”, adding “[a] person's social standing is strongly correlated to his standard of living, although other factors may be important as well,” 204 Conn. 224, at 236.   Before these parties separated, they shared a modest residence and divided their labor so as to provide for their two unique offspring.   By this agreed-upon division, plaintiff relegated her career to second-priority status, whereas defendant threw himself into his and worked substantial overtime so as to be an adequate breadwinner.   Those choices were rational and appropriate when made, but, through no fault on either's part, they do impact the plaintiff negatively now that the marriage partnership is ending.   Both parties are at the midpoint of their working lives, and it is foreseeable that defendant will have a substantially higher potential for future acquisition of capital and income over the second half of his career than will plaintiff.

In addition, the court finds that at least at this time she is living without any adult companion, whereas defendant has found a woman with whom he is cohabiting and who, since she is herself a DMR worker, is capable of sharing substantially in his household expenses.   In the orders entered below, the court has attempted to provide that both parties be able to maintain a semblance of the middle-class lifestyle which their marital years afforded them.

As to child support for Kevin, this court has prepared the attached guideline worksheet based upon the findings as to earnings set forth above, and assuming that defendant will be allowed to claim him as a dependent for tax purposes.   The court has separately considered a child support order for Lauren's benefit as well under the authority of Conn. Gen.Stat. § 46b-84(c), which provides that such a determination is not subject to child support guidelines but, instead, is to be weighed in light of factors set forth in subsection (d) which are similar, but not identical, to those set forth in §§ 46b-81 and 82 (including consideration of those factors as they apply to Lauren also).   As to her support, the court assumes that the Social Security income of $450 per month will be available to plaintiff as her caretaker, and further assumes that Kevin will not be eligible for such income at this time;  should either of these assumptions be eclipsed by a contrary ruling by the Social Security Administration, that would be a substantial change of circumstance warranting a hearing on modification of the support order as to that child.  (By identifying this factor, it is not the court's intention to preclude a modification based upon other factors if such were appropriate).

III Orders

In light of the foregoing findings, and guided by the relevant statutes and case law which this court has fully considered, it is hereby ORDERED:

1) The marriage is dissolved on the basis of irretrievable breakdown.

2) Custody of Kevin is awarded to the parties jointly, with primary residence with plaintiff.   Defendant shall have access with Kevin (and with Lauren by agreement of the parties), at the following times:

a) Alternate weekends from school dismissal on Friday through Sunday at 2:00 p.m.;

b) On non-visitation weekends, from Friday after school through 7:00 p.m.;

c) Each Wednesday from after school until 4:30 p.m., unless his work duties prevent him from doing so.   He may have the children a different afternoon in that week provided that he has given plaintiff at least one week advance notice thereof;

d) Alternate holidays and vacation periods on such schedule as the parties may agree.   As to such occasions, defendant shall notify plaintiff by email at least thirty days in advance concerning his plans;  and

e) At such other times as the parties agree.

3) At all times denoted in subparagraphs 2a, 2b, and 2c, defendant shall be responsible for the care of Kevin.   It shall be his obligation to make appropriate arrangements for his care in the event that he is unable to care for him during these designated periods.   If defendant fails to show up at the times indicated, he shall compensate plaintiff for her having to provide alternative care, at the rate of $15 per hour to a maximum of $120 per day.   This is in addition to the child support orders set forth below.

4) Defendant shall transport Kevin to plaintiffs home at the end of each visitation.

5) As child support for Kevin, defendant shall pay plaintiff $186 per week by immediate wage execution.   He shall be responsible for 45% of unreimbursed medical needs of this child, and work-related daycare (in addition to any amounts due under Paragraph 3).   Child support shall continue until Kevin's twenty-first birthday if his custodial circumstances remain the same after he reaches age 18.

6) As child support for Lauren, defendant shall pay plaintiff $1 per week, and shall be responsible for 45% of unreimbursed medical needs of this child, and work-related daycare, until her twenty-first birthday.

7) Each party shall name the children as beneficiaries on any policy of health insurance provided by his or her employer, at a cost not exceeding 7.5% of net income.  (If available to both, the parties may exercise their discretion so as to avoid duplicative coverage and costs).   The provisions of § 46b-84(c) are incorporated by reference.

8) Defendant may claim Kevin as a dependent for tax purposes, and plaintiff may claim Lauren.

9) Defendant shall quit-claim to plaintiff all his right, title, and interest in and to the premises located at 13 Old Shetucket Turnpike, Griswold, CT. In consideration therefor, she shall assume and hold him harmless as to any mortgage or tax obligations thereon.   As additional consideration, she shall issue to him her promissory note in the amount of $35,000, together with interest thereon at the annual rate of four percent (4%), due and payable on the earliest of the following occasions:

a) Her death;

b) Six months after her remarriage or cohabitation as defined by Conn. Gen.Stat. § 46b-86(b);

c) Sale of the residence;

d) March 1, 2017.

10) The note shall be secured by a second mortgage upon the Griswold property, which mortgage shall also contain provisions requiring her payment of taxes and assessments upon the property and the maintenance of insurance naming defendant as an additional insured to at least the extent of the balance due him in the event of loss.   In the event that plaintiff elects to refinance the existing first mortgage so as to remove defendant from liability to the present lender, the mortgage required by this order shall be subordinated to the new mortgage she obtains for that purpose, provided that the principal amount secured by such new mortgage may not exceed $60,000.   All costs of the preparation and filing of this mortgage shall be at her expense.

11) Defendant shall retain his defined contribution 401K plan.

12) Defendant's defined benefit pension entitlement shall be divided equally between the parties as of June 30, 2010.   Plaintiff's share of the pension benefit as it has accrued to this date shall be subject to survivorship protection in the event he predeceases her.

13) Each party shall continue to possess the vehicle he or she is driving at this time.   Each shall execute such documentation as is required to convey to the other title to the vehicle driven by the other, and each shall assume and hold the other harmless as to any liability secured by the retained vehicle.

14) Each party shall assume and hold the other harmless as to those debts shown on his or her financial affidavits.

15) Defendant shall pay to plaintiff as periodic alimony the sum of $200 weekly.   Periodic alimony shall terminate upon the death of either party, or on June 30, 2017;  as to amount, it may be modified in the discretion of the modification court in the event of the plaintiff's remarriage, cohabitation with an unrelated person as authorized by C.G.S. § 46b-86(b), or for other good cause.

16) As additional periodic alimony, and subject to termination or modification upon the same terms, defendant shall pay to plaintiff twenty-five percent (25%) of the amount by which his annual income exceeds $63,000.   To implement this provision, he shall, by February 15 of each year, provide her with a copy of his IRS Form W-2 from each of his employers for the preceding year in order to permit the calculation of this amount.   The amount due shall be paid by the following April 15.   By way of example, if he earns W-2 wages of $73,000 in 2010, then by April 15, 2011, he will pay her $2,500 pursuant to this order ($10,000 x 25% $2,500).   This order is expressed in terms of gross income for ease of calculation, but in rendering it the court has considered the effects upon the net income of both parties

17) Each party shall name the other as beneficiary as to any life insurance now or hereafter provided by the party's employer.   Either party may add additional insurance for the benefit of the children at his or her election.   This provision shall expire on March 1, 2017.

18) Counsel for plaintiff shall prepare the judgment file and a domestic relations order concerning defendant's pension in a form acceptable to the State Retirement Board.   Counsel for defendant shall prepare the quit-claim deed, mortgage, and related documents, and any papers needed to transfer title to the vehicles.

Boland, J.

Boland, John D., J.