Laurel Swierad v. Scott Swierad (2010)

MEMORANDUM OF DECISION

The plaintiff commenced this action for dissolution of marriage by complaint dated November 18, 2008 and made returnable to the court on December 16, 2008.   Both parties were represented by counsel, and trial was held on April 5, 6 and 7 of 2010.   The issues presented to the Court involve the wife's claim to alimony and the equitable division of the marital estate.

The Court has carefully considered the statutory criteria for the granting of a dissolution of marriage, alimony, and property division and has considered the testimony of the parties and witnesses, the exhibits entered into evidence, the party's financial affidavits, and hereby finds the following facts as set forth and proven at trial.

FINDINGS

The plaintiff, formally named Laurel Cellini, and the defendant Scoff Swierad, were married at East Haven on October 11, 1985.   Both parties have resided continuously in the state of Connecticut for more than one year prior to the commencement of this action.   Neither of the parties has received financial assistance from the State of Connecticut nor from any town or city in the state.   One child was born issue of the marriage who has since reached the age of 23 years.   This Court has jurisdiction to hear this matter.

The Parties

During the course of this 25-year marriage the husband was the primary income earner and employed as a residential builder while the wife was the primary caretaker of the home and the minor child.   The wife worked part time outside the home for a few hours per week while the child was in her early school years.   In 2002 she returned to school and after became employed as a licensed practical nurse.   She is currently in good health and works between 34 and 36 hours per week and earns a gross weekly wage in the amount of $1,017.72 and a net weekly wage of $704.81.

Since 1993 the husband has been the sole proprietor of the business known as Swierad Builders, LLC, and all income and expenses, including the families personal expenses, pass through the business.   The defendant's income and expenses were at issue during the trial and both parties presented expert testimony in this regard.   The findings in this regard will be later addressed.

This marriage has been troubled for some years.   The husband previously filed for a dissolution of the marriage in 2006 which was dismissed because of reconciliation in late 2007.   The parties remained reunited until the wife filed this action for dissolution in November of 2008.   During her testimony the wife described the marriage as “average” and maintained that the relationship fell apart in the past five years.   She attributes the cause of this breakdown to the husband's extra-marital relationship with another woman and his failure to return home after work at a reasonable hour although she offered no evidence other than her testimony at time of trial.   Further, she claims that she was “duped” by the husband into reconciliation in 2007 for the sole purpose of refinancing the marital home in order for the husband to draw all the equity out of the home.   The husband claims the breakdown of the marriage was simply due to the parties' differing interests.   The Court finds, based on the credible testimony of the wife, that the husband's actions contributed to a greater degree to the breakdown of the marriage.

I. PROPERTY

The Court finds the following properties to be a part of the marital estate and subject to equitable distribution under Krafick v. Krafick 234 Conn. 783 (1995).

A. The Marital Home

The parties purchased a lot in 1992 and built the home within the following year.   In 2005 the marital home had a first mortgage in the amount of $105,000.   Subsequently the parties used a home equity line of credit to purchase a building lot at 8 Lincoln Street in East Haven for $80,000, with the intention that the defendant would build a home on the lot and place it on the market for sale.   As of the date of trial the lot remains unimproved.

In January of 2008, after the parties reconciled, the husband convinced the wife to refinance their marital home and incur an additional $100,000 of debt.   Currently there is a first mortgage on the marital home in the amount of $200,000, and the parties have drawn an additional $100,000 from an equity credit line.   From this equity line of credit the wife drew $10,000 in November 2008 in order to file for this dissolution and to pay her attorneys fees.   The husband readily admits in his testimony, which is supported by the testimony of his witness Mr. DeCaprio, to having withdrawn the remaining $90,000 in December of 2008 and depositing said sum into a New Alliance Bank Certificate of Deposit (CD).  He withdrew an additional $56,300 from that account between January and November of 2009.   The balance of the New Alliance CD as of the date of the trial is $29,867.   According to the husband's testimony he used the difference of approximately $60,133 to pay business expenses and suppliers for his business.

The parties agree the current value of the marital home is valued at $351,500 and the current mortgage and home equity loan amounts to $293,531 leaving the total equity in the home in the amount of $57,969.

B. Other Real Estate:

The parties jointly own the following real properties:

1. The parties own a building lot located at 8 Lincoln St. East Haven and the parties agree the value of the property is $80,000.

2. The parties jointly own real property located at 200 Foster Pond Rd, Peacham, Vermont, valued at $8,000.

C. Bank Accounts:

The following bank accounts are marital assets:

Webster Account/checking $3,500

Liberty Savings $500

Wachovia Savings $249

New Alliance Bank accounts:

Certificate of Deposit $29,867

Savings account $776

Free Checking $804

Business savings $1,496

Business checking $11,429

Business checking $1,449

D. Personal property:

The parties own the following automobiles and recreational vehicles:

2001 BMW 325 Ci $7,300

Coachman camper 5,000

Scout Motorcycle 3,500

Snowmobile 4,500

Ford Model A Roadster 10,000

Personal Property:

Gun Collection $4,500

Defendant's Life Insurance

Cash Value $1,500

E. Income Tax Returns:

The Court finds that the husband has filed an extension for the 2009 tax return but that the parties anticipate multiple refunds after the filing of the 2007, 2008 and 2009 returns.   This Court finds any refunds to constitute marital property.

II. ALIMONY

The husband claims on his financial affidavit that his weekly income is $1,700 in a weekly draw from Swierad Builders LLC. The husband further presented expert testimony of Philip DeCaprio, C.P.A. for the sole purpose of determination of the defendant's income.   Mr. DeCaprio testified that he based his opinions after having examined the business records kept through the Quickbooks program maintained by Mr. Swierad but that such books were not kept according to proper accounting principles.   Mr. DeCaprio testified that for the year 2009 the defendant took a gross draw from Swierad Builders LLC in the amount of $119,354 but had “put back” into the business $56,300 from the proceeds of the equity line of credit resulting in a net annual draw of $63,054.

The wife presented expert rebuttal testimony by Joseph A. DeCusati, an accountant and business evaluator, who concluded that the business records kept in the Quickbooks program were inadequate and found that the defendant under-reported income to the business.   Mr. DeCusati offered his opinion that the defendant's cash flow through his business for the year 2009 was in the amount of $301,156.39 and that the defendant's draw was in the amount of $115,000.

This Court has considered the testimony by Mr. Swierad, has reviewed the exhibits entered into evidence, and has taken into consideration the financial obligations of Mr. Swierad and finds that he has consistently met the obligations of the home mortgage and home equity line of credit, has paid his daughter's rent in Boston the amount of $1,200 per month along with her credit card expenses up to $500 per month, has paid the costs of all home utilities and maintenance, has paid tuition bills at Suffolk University for the past four years, and has paid his rental fees for an apartment held by Mr. Swierad, unbeknownst to the wife until the day of trial, in the amount of $800 per month.

This Court finds credible the testimony of Mr. DeCusati that the husband had taken a draw in the amount of $115,000 and finds that he used that amount to meet his expenses for his monthly payments as indicated in the Court exhibits and financial affidavit of the husband.   Further, this Court accepts Mr. Swierad's testimony that he used the $56,300 from the credit line to pay his business suppliers.

In a dissolution proceedings, the Court must fashion financial orders in accordance with the criteria set forth in § 46b-81 and § 46b-82.   Both provisions require consideration of the parties' amount and sources of income in determining the appropriate division of property and alimony.  Pellow v. Pellow, 113 Conn.App. 122, 128-29 (2009).   This Court finds that based on the facts of this case, and after having considered the statutory provisions of § 46b-81 and § 46b-82 and the applicable case law, a periodic award of alimony is in order and necessary to balance the equities of the property division in support of the wife due to the fact that the parties incurred additional liabilities against the equity of the marital home.

ORDERS

1. The marriage of the parties is hereby dissolved and each are hereby declared to be single and unmarried.

2. Commencing on August 1, 2010 and continuing monthly thereafter, the husband shall pay to the wife alimony in the amount of $1000 monthly, non-modifiable as to term for a period of 9 (nine) years, or until the death of either party, upon the remarriage of the wife, or upon cohabitation, as determined by a Court under the cohabitation statute § 46b-86.

3. Within 14 (fourteen) days of these orders, the husband shall transfer all his rights, title and interests in the marital residence, along with its furnishings, known as 830 Route 148, Killingworth to the wife by quitclaim deed.   In return, the wife shall transfer all her rights, title and interests in the two properties known as 8 Lincoln Street, East Haven and 200 Foster Pond Road, Vermont to the husband by way of quitclaim deed.

4. The husband shall be exclusively liable for all payments on the home equity line of credit in the approximate amount of $100,000 and he shall hold the wife harmless therefrom.   It is the intentions of this Court that the payment of the home equity loan by the husband is to allow the wife to remain in the marital home and that this obligation shall be non-dischargeable in a U.S. Bankruptcy Court.   The Court further orders the parties to liquidate the New Alliance CD with a remaining balance in the amount of $29, 867, or its current balance as of the date of this judgment, and apply said sum to pay down the balance of the home equity line of credit.   Neither party shall make any future withdrawals against said line of credit and the husband shall pay the balance of approximately $70,000 within 10 years from the date of this decree.

5. The husband shall retain sole rights and interests in the following properties:  the Ford 350, the 2008 Harley Davidson, the Scout motorcycle, the Model A Roadster, the snowmobile MXZ 800 and trailer, the Coachman camper and the gun collection.

6. The wife shall retain all rights and interests in the 2001 BMW.

7. As to all remaining bank accounts listed on the parties respective financial affidavits, and as listed above in the Court's findings, the parties shall equally divide each account as of the date of this decree.

8. Any tax refunds for the years 2007, 2008 and 2009 shall be equally divided between the parties.

9. The husband shall maintain a life insurance policy with a death benefit in the amount of $175,000 (One-hundred and seventy-five thousand dollars) and shall name the wife as the irrevocable beneficiary.   Said policy may be by decreasing term.   The husband shall provide proof of the existence of said policy to the wife on the 1st day of August annually until such time as his financial obligations to the wife are satisfied.

10. Each party shall be responsible for their respective attorneys fees and costs in the bringing of this action.

Markle J.

Markle, Denise D., J.