Joyce Hunter v. Raymond Hunter (2010)

MEMORANDUM OF DECISION

The court makes the following findings of facts and conclusions of law.

The parties were married on October 20, 1979.   The plaintiff-wife is fifty years old and the defendant-husband is almost 52 years old.   Three children were issue of the marriage with the youngest child having reached the age of eighteen years on June 24, 2010.   The defendant retired as a state of Connecticut correctional officer in September of 2008.   He presently receives a gross monthly pension as his sole source of income in the amount of $3,587.50.   The defendant receives medical coverage for himself and his family with no monthly premiums.   Additionally, the defendant pays $67.32/month as his portion of his dental premium.   His only other deduction stems from the fact that the parties were previously and erroneously recipients of state assistance which the state subsequently obtained a court order for reimbursement and therefore $217.26/month is being garnished from the defendant's pension with an outstanding arrearage approximating $8,600.

Since approximately 2004, the plaintiff has worked two-full time jobs, her day job is as a program instructor for Marrakech, Inc., working with mentally disabled adults ¹ and her second full time job is working for Accord, Inc. with five women in their home.   The plaintiff earns approximately $12.68/hour at Marrakech, $12.57/hour at Accord and she reports a net weekly income of $996.89.

The defendant commenced an extramarital relationship with his present live-in girlfriend in November of 2007.   The plaintiff learned of her husband's affair in 2008.   Although the defendant initially vacated the marital home in August of 2008, he intermittently returned home for short periods of time in 2008 and 2009.²  Plaintiff's exhibit 8 reflects the defendant signed a lease for an apartment with his girlfriend in May of 2008 and commenced paying for rented furniture for their apartment in June of 2008.  (Plaintiff's exhibit 12.)   In approximately June of 2009 the defendant and his girlfriend relocated to Virginia where they reside together in a rented home.   The defendant remains unemployed in Virginia.³

The parties purchased the marital home at 39 Glemby St. in Hamden, Ct. in approximately 2002.   Some or all of the nominal down payment for the marital home was furnished by the plaintiff's father.   The plaintiff estimates that the present market value of the marital home is approximately $190,000.   The defendant testified that approximately $201,000 is owed on the first mortgage and somewhere between $48,000-$49,000 is owed on the second mortgage.   Although there was a December 11, 2008 pendente lite court order directing the parties to each contribute one-half to the monthly Glemby property mortgages, with the defendant ordered to make the actual payment directly to the lenders,⁴ the defendant conceded during the May 7th trial date he had failed to pay the mortgage payments for the months of February, March, April and May of 2010.

During the course of the marriage the parties embarked on a plan to purchase a number of rental producing properties with the intent to sell them in order to finance their daughters' college educations.   Although the original goal may have been to purchase up to five rental producing properties the parties actually only purchased two multifamily investment properties, specifically a three-unit dwelling at 61-63 Truman Street in New Haven and a three-unit dwelling located at 19-21 Bassett Street in New Haven.   The parties disagree as to source of the funding associated with the purchase of these properties, the plaintiff claims it came from her earnings from Accord but the defendant claims the funding was secured by obtaining the second mortgage on the Glemby property.   The Truman property was purchased for $242,000 and presently has a fair market value of approximately $180,000.   Monthly rental income when all three units are inhabited equals $2,600.   The monthly mortgage payment is $2,300 but when the costs associated with the sewers and city water are added, no net profit is realized from the Truman property other than tax benefits.   Similarly the Bassett St. property has a $230,000 mortgage with a present market value of approximately $160,000.   The monthly mortgage payment is $2,100 but with one of the three units unoccupied the monthly rental income is approximately $400 less than the expenses associated with the property.   The plaintiff testified there has been no net profit from either rental property for the last two years.

Other marital assets previously existed.   The defendant had approximately $15,000 in an ING account that was liquidated in December of 2008 or in January of 2009.   The plaintiff professes to have derived no benefit from the liquidation of the account but the defendant claims the account was liquidated by agreement of the parties to pay outstanding marital debt, including credit card debt of which approximately $6,000 was incurred for a family cruise vacation.

The defendant was also in possession of two life insurance policies which he surrendered for their value in January of 2009.   He received payments totaling $4,631.35.⁵  Again the plaintiff contends she was never consulted regarding the liquidation of the life insurance policies nor did she share in the cash proceeds.   The defendant claims the plaintiff was aware the life insurance policies were cashed in and used to “catch up on the mortgages.”

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-84 as to child support, 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-56c, as to educational support orders, as well as the applicable case law and the evidence presented at trial, the court enters the following additional orders:

Marital Home

The defendant's decision to engage in an ongoing extramarital relationship with his now live in girlfriend is the glaring cause for the irretrievable breakdown of this thirty-year marriage.   The defendant incurred expenses in obtaining and furnishing an apartment he shared with his girlfriend in Connecticut and then subsequent expenses in establishing a home in Virginia.   Other than the defendant's pension there are no other substantive marital assets to distribute given that the Glemby St. marital home is worth considerably less than what is owed on the mortgages.   Notwithstanding the negative equity in the marital home, the plaintiff seeks to have the court award her sole ownership of the Glemby St. home.   In his belated and informal requests for relief (Defendant's exhibit A) the defendant requests that if he were to remain partially responsible for the Glemby Street mortgages his obligation would only continue until the home could be sold and if the plaintiff were to take on a roommate his obligation would cease.⁶

The plaintiff testified that the defendant obtained a modification of the mortgage payment, possibly in August of 2009.   The defendant however was evasive and not forthcoming with the plaintiff regarding the amount of the modification.   At the June 7th trial date the parties represented to the court that they were working together on getting the mortgage current on the Glemby St. home.

There is no easy or simplistic solution to the distribution of the parties' real property.   Because the defendant's infidelity is the proximate cause for the irretrievable breakdown of the marriage, and because he expended martial money to rent a Connecticut apartment and furniture and then elected to relocate with his girlfriend to Virginia and because his request for relief encompasses selling a marital home which has a negative equity possibly in excess of $60,000, his claims for relief are denied.   At the plaintiff's request and to her risk, the court hereby confers exclusive possession of the Glemby home to the plaintiff.   Moreover the court hereby orders the defendant to immediately quitclaim his interests in the marital home to the plaintiff.   The plaintiff will become responsible for all of the costs associated with the home, including the mortgages, and the defendant shall be indemnified and held harmless regarding any expenses associated with the marital home effective July 1, 2010.   The plaintiff shall within six months of judgment make a good faith effort to have the defendant's name removed from the mortgages on the marital home.   If the plaintiff is unable to remove the defendant's name from the mortgages due to refinancing issues she shall continue to attempt to do so every eighteen months.

There has been noncompliance with the December 2008 court order in which each party was responsible for fifty percent of the mortgages on the Glemby home.   The plaintiff forfeited receiving from the defendant the court ordered $150/week ($450/month) in child support under the belief the defendant was applying the $645 as her contribution to the mortgages.   As of May 7, 2010, no mortgage payments were made for February, March and April of 2010.   The defendant is hereby ordered to be solely responsible for 100% of the February, March, April and May 2010 Glemby mortgage payments.⁷

The two rental properties, Truman St. and Bassett St. shall remain the sole possessions of the plaintiff and the defendant shall be indemnified and held harmless regarding any expenses associated with said properties.

Child Support

The youngest child turned eighteen on June 24, 2010 and was scheduled to graduate from high school on June 17, 2010.   A future looking child support order is therefore moot.   However the plaintiff seeks an order regarding a child support arrearage.

On December 11, 2008 the court ordered the defendant to pay $150/week in child support.   In May of 2009, the court ruled the defendant was not in contempt but determined that the defendant owed the plaintiff $2,312.95 in child support.   In December of 2008 the court entered further orders that the parties shall each make one-half of the mortgage payments (all mortgages) on the primary residence beginning with the January 2009 payments.   The father shall make payments directly to the mortgage lenders.   As previously described however, sometime later in 2009 the parties, unbeknownst to the court, made an informal agreement that the $645/month child support due to the plaintiff from defendant each month could be retained by the defendant as her half of the mortgage obligation.   The plaintiff forfeited $645/month in child support and the defendant unilaterally elected to stop paying the Glemby mortgage in February of 2010.

The plaintiff testified that as of May 7, 2010 the defendant owed her in excess of $10,260 in back child support.   However, the plaintiff conceded that her calculations regarding unpaid child support were based on the defendant's nonpayment of the mortgages.   Arguably, if the mortgages were current then the defendant's child support obligation would have been met.   At the time of trial the only evidence before the court was that the Glemby St. mortgages had not been paid in February, March, April or May of 2010.   Because the defendant has been ordered to pay the February, March, April and May 2010 mortgage payments the court finds there is insufficient evidence to find that the defendant owes the plaintiff over $10,000 in child support.   The court does find that the outstanding arrearage of $2,312.95 established by the court in May of 2009 is still owed the plaintiff and the defendant is hereby ordered to pay the plaintiff $20/month toward said arrearage.

Pension

The defendant's pension is in pay status and is deemed marital property.   The plaintiff shall receive 50% of the defendant's net monthly pension benefit and 50% of any annual cost of living adjustment (COLA) awarded to the defendant.   Net monthly pension benefit is defined as the gross amount ($3,587.50) minus the defendant's state and federal tax deductions (which he failed to list on his sworn financial affidavit) and his existing portion of his dental premium and the existing monthly state support garnishment order of $217.26.   When the support arrearage owed the state is satisfied the defendant's net monthly pension shall be defined as the gross amount of $3,587.50 minus the defendant's state and federal deductions and his dental premium.   Said order shall be effectuated through a domestic relations order and shall remain in effect until the defendant's death, (at which time the plaintiff shall receive the irrevocable lifetime fifty percent spouse payment option the defendant elected at the time of his 2008 retirement).

Alimony

Neither party shall receive alimony from the other.

Post-Majority Support Education Orders

The plaintiff seeks to have the court retain jurisdiction over the payment of college.   The defendant requests the court not retain jurisdiction and that he not be ordered to contribute to the cost of college.   He claims his earning capacity is limited to the state pension he is now collecting and that the parties' plan to finance college through the purchase of rental properties failed.   Given the extremely meager funds available to the parties and the court's orders as to the defendant's pension and the parties' real estate holdings, the court declines to retain jurisdiction pursuant to C.G.S. § 46b-56c.

Health Insurance

The parties' youngest child has now reached the age of majority and therefore the court lacks jurisdiction to enter orders regarding ongoing health insurance for any of the parties' adult children.   Testimony from Ms. Kopek, the assistant director of the Connecticut retirement and pension division, revealed the plaintiff will no longer be eligible to receive health insurance as a former spouse under the defendant's health insurance policy.   The court hereby orders that the plaintiff shall be allowed to pursue health insurance through the defendant's policy under COBRA if available and the defendant shall cooperate with the process.   The cost of COBRA or any other health insurance policy secured by the plaintiff shall be the plaintiff's sole responsibility.

Life Insurance

As indicated previously, the life insurance policies were previously cashed out by the defendant.   However pursuant to his Tier II retirement package, the defendant elected the 50% spouse payment option.   Plaintiff's exhibit 15, first page, explains said option as follows:

The fifty percent spouse payment option election provides a reduced amount payable to the member for their lifetime with the provision that, following the member's death, their spouse as designated on the option form completed at the time of retirement, if surviving, shall be entitled to receive a lifetime income equal to fifty percent of the reduced monthly amount payable to the member.   Should the member's spouse predecease the member, no monthly income would be payable subsequent to the member's death.   This option election is irrevocable and will remain in effect without regard to any change in marital status subsequent to retirement.

In light of the foregoing the court declines to enter any further orders regarding life insurance.

Credit Card debt

(1) Each party shall be equally liable for the outstanding balance owed as of the date of judgment on the Raymour and Flanagan and the Lowe's Home Improvement debt.

(2) As to the remaining credit card debt each party will be solely responsible for the debt listed on their financial affidavit and each party shall indemnify and hold harmless the other as to said debt.

Personal property

On the second and final day of trial the defendant submitted a hand written list of requests.  (Defendant's exhibit A.) Based on the exhibit and the testimony of the parties the court enters the following orders:

(1) The Mountaineer vehicle shall be retained by the defendant.   He shall be responsible for all costs associated with the vehicle and indemnify and hold the plaintiff harmless.⁸

(2) The defendant shall retain the 63-inch television located in the living room of the marital home.   He shall be responsible for scheduling a mutually agreeable time within ninety days from judgment for the removal of the television from the marital home.   The defendant shall be responsible for all costs and arrangements associated with the transfer of the 63-inch television to his possession.

(3) The snow thrower shall remain the possession of the plaintiff.

(4) The chainsaw shall remain the possession of the defendant and within ninety days of judgment he shall remove said chainsaw from the marital home.

(5) The hedge cutters shall remain the possession of the plaintiff.

(6) The caricature of the parties' three daughters created during the family's cruise shall belong to the defendant.

(7) The family portrait taken on the cruise shall belong to the plaintiff.

(8) The defendant shall possess the two pieces of artwork in the martial home bathroom.

(9) All other artwork in the marital home shall be retained by the plaintiff.

(10) Both sets of china shall be retained by the plaintiff.

(11) The defendant shall retain his cup collection.

(12) The parties shall review all of the family photos albums and attempt to agree to equitably divide the family photos.   If both parties insist on retaining ownership of any specific photo then the photo shall be copied by the plaintiff, with both parties paying fifty percent of the costs associated with copying, and the defendant shall be given a copy of any and all photos within six months of judgment.   Unless otherwise agreed to by the parties, the existing albums shall remain the possession of the plaintiff.

(13) The file cabinet located in the Glemby St. basement shall remain with the plaintiff.   The defendant shall be given liberal access to said file cabinet and under the plaintiff's supervision the defendant shall be allowed to make copies at his expense of any documents in the file cabinet.   The original file cabinet documents shall be returned to the file cabinet within 72 hours after any removal for purposes of copying.

(14) The plaintiff shall retain possession of the working washing machine in the marital home.   The plaintiff shall be responsible for all costs/payments associated with said washing machine and indemnify and hold the defendant harmless.

(15) Unless otherwise agreed to, the plaintiff shall retain possession over all other items located in the Glemby property.

Attorney Fees

The plaintiff shall be responsible for her own attorney fees.

Bernadette Conway, Judge

FOOTNOTES

FN1. The plaintiff has been employed at Marrakech, Inc. for nine years..  FN1. The plaintiff has been employed at Marrakech, Inc. for nine years.

FN2. The family enjoyed a cruise together in the fall of 2008..  FN2. The family enjoyed a cruise together in the fall of 2008.

FN3. The court concludes no credible evidence was forthcoming reflecting an inability by the defendant to obtain future employment..  FN3. The court concludes no credible evidence was forthcoming reflecting an inability by the defendant to obtain future employment.

FN4. The defendant is the sole owner of the marital home and the sole obligor on the Glemby mortgages.   This arrangement was made by the parties so that the plaintiff could be designated as a first time home buyer regarding the Truman and Bassett Street properties..  FN4. The defendant is the sole owner of the marital home and the sole obligor on the Glemby mortgages.   This arrangement was made by the parties so that the plaintiff could be designated as a first time home buyer regarding the Truman and Bassett Street properties.

FN5. In plaintiff's exhibit 4 one policy has the defendant's signature dated as January 7, 2008.   The parties concede both life insurance policies were cashed in January of 2009..  FN5. In plaintiff's exhibit 4 one policy has the defendant's signature dated as January 7, 2008.   The parties concede both life insurance policies were cashed in January of 2009.

FN6. The defendant also requests a monitoring of the house's occupancy to verify if and when a third party moves into the martial home.   Given the court's ruling the court need not address said request..  FN6. The defendant also requests a monitoring of the house's occupancy to verify if and when a third party moves into the martial home.   Given the court's ruling the court need not address said request.

FN7. Any outstanding property taxes due on the Glemby property shall be paid by the defendant within ninety days of judgment thereby allowing the plaintiff to register the jaguar vehicle which shall remain her sole possession.   The parties shall each cooperative to the fullest extent to have the registration of the jaguar vehicle immediately transferred solely to the plaintiff's name..  FN7. Any outstanding property taxes due on the Glemby property shall be paid by the defendant within ninety days of judgment thereby allowing the plaintiff to register the jaguar vehicle which shall remain her sole possession.   The parties shall each cooperative to the fullest extent to have the registration of the jaguar vehicle immediately transferred solely to the plaintiff's name.

FN8. To reiterate, the defendant shall pay any outstanding property taxes owed on the Glemby St. property to allow for registration of the plaintiff's vehicle..  FN8. To reiterate, the defendant shall pay any outstanding property taxes owed on the Glemby St. property to allow for registration of the plaintiff's vehicle.

Conway, Bernadette, J.