Darlene Mihalakos v. George Mihalakos (2010)

MEMORANDUM OF DECISION

This matter was tried before the court on November 23, 2009.   The Plaintiff, Defendant and one witnesses testified and exhibits were introduced.   As of the date of trial neither parent had completed the Parenting Education Program as required by state statute.   The parties argued that they had taken a 4-hour course on the internet and produced certificates.   The court ordered both parties to take the six-hour program with an approved state provider and waived the fees.   On April 7, 2010 documentation showing the parties had taken the Parenting Education program was filed with the clerk's office.   Neither parent provided the court with a chambers copy of the documentation and the court did not become aware of the successful completion of the program until May 13, 2010.

The court has considered all of the credible evidence presented to it and carefully considered the respective criteria for orders of child support, health insurance, payment of child's medical expenses, alimony, property settlement, division of debt, and award of counsel fees.   The court makes the following findings of facts and orders:

The parties were married on June 16, 1996 in Orange, CT. The court finds that it has jurisdiction over the marriage.   One of the parties has lived in the State of Connecticut for more than one year prior to bringing this action.   The following minor children have been born to the parties since the date of the marriage:

Ana, Z., date of birth, March 16, 2002;  and

Sophia M., date of birth, February 20, 2005.

No other minor children have been born to the wife since the date of the marriage.   The parties are not receiving state assistance.   The court finds that the marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.

The defendant testified he works five days per week as an owner/operator/sole employee of a subsidized luncheonette located at the New Haven Register.   He testified he takes in on average gross cash receipts of $250-$300 per day and pays himself $500 per week.   Mr. Mihalakos testified he solely utilizes a Bank of America checking account to operate his business in the name of Clark's Dairy, Inc. (Exhibit 8).

The court examined in detail the Clark Dairy corporate income tax return for 2008 and monthly Bank of America statements for the company from January 1, 2008-October 31, 2009.

The 2008 corporate tax return for Clark's Dairy (Exhibit 6) reports gross receipts of $52,210 and cost of goods sold $14,328.

The Defendant testified at trial that Clark Dairy operates strictly on a cash basis for all sales and purchase of food and supplies.   Mr. Mihalakos was unable to produce a single receipt for food/supplies at trial but estimated cost of goods sold totaled 40% of gross profit.   This is in contravention to his 2008 corporate tax return which reports cost of goods sold as 27%.

The court added all other expenses paid from the Clark Dairy Bank of America for 2008 and 2009 and found on average the Defendant expended $461 (2008)-$476 (2009) on IRS payments, $303 (2008)-$351 (2009) to the Connecticut Department of Revenue and $79 (2008)-$88 (2009) to the Department of Labor.   The majority of deposits to this account were made in cash corroborating Mr. Mihalakos' testimony that the luncheonette operated as a cash business.

The Defendant and his mother both testified that his mother gave him between $300-$400 per week to help him pay bills.   When Mrs. Mihalakos (Defendant's mother) was asked where the money came from she raised her Fifth Amendment rights not to incriminate herself.

The Defendant is employed part-time at his parent's pizza restaurant and reports earning $220 gross income from this source along with his claimed income of $500 per week from the operation of the luncheonette.

The court used the corporate tax return cost of goods sold percentage to calculate the Defendant's income from the luncheonette as follows:

A) $250 (gross per day) x 5 (days per week) = $1,250.

B) $300 (gross per day) x 5 (days per week) = $1,500.

$1,250.00 $1,500.00

337.50 - Food & supplies 405.00-Food and supplies

82.00 - CT DOR 82.00-CT DOR

18.00 - CT DOL 18.00 - CT DOL

111.00 - IRS 111.00 - IRS

$ 703.50 $ 884.00

The court finds that based on the foregoing evidence the Defendant's gross income ranges from $700-$884 per week from the luncheonette plus $220 from Clark's Pizza and $350 in average regular weekly gifts from Defendant's mother that have made over the course of several years.

Therefore the court finds the Defendant's gross income is as follows:

$ 792-(average of $700-884)

220 - Clark's Pizza

350 ¹  - From mother

$1,362-Gross weekly income.

The family home is located at 48 Wood Avenue in Hamden, Connecticut has an agreed upon value of $235,000, an outstanding mortgage of $160,231 and equity of $74,769.00.

During the marriage the minor children attended private school.   An examination of Financial Affidavits makes it clear to the court that the tuition expense is a luxury the parties can no longer afford.   Accordingly, the court declines to make any orders regarding the payment of private school tuition.

ORDERS

After considering all of the statutory criteria set forth in General Statutes § 46b-84 as to support of a minor child, § 46b-215a-1 et. seq., Regs. Conn. State Agencies, as to child support, § 46b-62 as to counsel fees, § 46b-66a, as to conveyance of real property, § 46b-81, as to assignment of property and transfer of title, § 46b-82, as to the award of alimony, § 46b-84, as to medical insurance for minor child, together with applicable case law and the evidence presented here, the Court hereby enters the following orders:

1. DISSOLUTION OF MARRIAGE:

A decree dissolving the marriage, on the grounds of irretrievable breakdown, shall enter on August 3, 2010.

2. CUSTODY/ACCESS:

The court finds that the agreement of the parties, filed November 23, 2009, regarding a parenting plan, is in the best interests of the minor children and it is incorporated herein by reference.

3. CHILD SUPPORT:

The Husband shall pay to the Wife child support in the amount of $264.00 per week, pursuant from the Child Support Guidelines computed by the court and attached hereto.*   The plaintiff shall continue to pay support until the earliest to occur of each child's graduation from high school or reaching the age of 19 years.

The husband and wife shall divide all work-related daycare expenses, including summer day camp, with the wife paying 47% and the husband paying 53%.

The court finds that the parties would have contributed to the cost of post-majority education for the minor children had the marriage remained intact.   The court retains jurisdiction to enter orders of post-majority educational support.

4. MEDICAL INSURANCE:

The Wife shall maintain and pay for medical and dental insurance for the benefit of the children as long as it is provided by her employer at a reasonable cost (defined as not more than 7.5% of her net income.)   The husband and wife shall divide unreimbursed medical, dental, orthodontia, optical, and psychological expenses with the wife paying 38% and the husband paying 62%.

5. MEDICAL INSURANCE-WIFE AND HUSBAND:

The Wife shall be responsible for her own medical insurance coverage.   The Husband shall be responsible for his own medical insurance and shall have the option of COBRA coverage for the maximum period allowed by law.   The wife shall cooperate with the husband if he elects to continue medical coverage through COBRA through her employer.   The husband shall be responsible for payment of the COBRA costs.

6. DEPENDANCY EXEMPTIONS:

The Husband shall take the dependency exemption for the minor children as long as his child support and his share of the unreimbursed medical expenses are current on December 31st of that year.   Each party shall sign any documentation necessary to effectuate this.

7. ALIMONY:

The Husband shall pay to the Wife periodic alimony of $225.00 per week until the first to occur of the following:  ten years from the date of judgment;  the death of either party;  or the remarriage or cohabitation of the Wife. A contingent income withholding shall enter.

8. PROPERTY DIVISION:

(a) Real property:

The Husband shall quit claim to the wife, his right, title and interest in the real property located at 48 Wood Avenue, Milford, Connecticut.   The wife shall hold the husband harmless and indemnified from the mortgage, taxes, utilities and maintenance for the home.   The stipulated value of the home is $235,000, the mortgage is $160,000 and equity in the home is $75,000.   The wife shall give the husband a mortgage and note in the amount of $37,500.00 bearing simple interest at the rate of 3% per annum.   The note shall be due and payable in a lump sum at the earliest to occur to the wife's remarriage or co-habitation, the youngest child reaching the age of 19 years old or graduating from high school, the failure of the wife to use the home as the primary residence of one of the minor children, or the voluntary sale by the wife.

The Wife shall have five years to refinance the mortgage on the property, eliminating any liability on the part of the husband.   The husband shall cooperate with the wife and sign any necessary documentation to facilitate the refinance of the property, including subordination of his mortgage to a new first mortgage.

(b) The husband shall own as his sole property the remaining assets listed on his Financial Affidavit submitted at trial, including stocks, bonds, mutual funds, and retirement assets.

(c) The wife shall own as her sole property the remaining assets listed on her Financial Affidavit.

9. HUSBAND'S BUSINESS INTERESTS:

The Husband shall retain his interest in Clark's Dairy, Inc., free and clear of any claims by the Wife. The husband shall hold the wife harmless and indemnified from all debts and liabilities of the business.

10. MOTOR VEHICLES:

The parties shall be entitled to their respective motor vehicles and shall hold the other harmless and indemnified from the loans, lease, registration, taxes and insurance for their respective motor vehicles.

11. DEBTS:

Each party shall be solely responsible for the debts listed on his/her Financial Affidavit and shall hold the other harmless and indemnified from the debts as listed on their respective financial affidavits.

12. LIFE INSURANCE:

The Husband and Wife shall both obtain term life insurance with a face value of $100,000 or the maximum face value a premium of $350.00 per year will purchase.

The Husband shall name the Wife and minor children as the beneficiaries for as long as he is obligated to pay alimony, child support or post-majority educational support.   The Husband shall provide to the Wife proof of said insurance on an annual basis.

The Wife shall name the minor children as the beneficiaries for as long as she is obligated to pay post-majority educational support or child support.   The Wife shall provide to the Husband proof of said insurance on an annual basis.

13. LEGAL FEES:

The Husband and Wife shall each be responsible for his/her own legal fees.

By the Court

Holly Abery-Wetstone, PJ

FOOTNOTES

FN1. Non taxable income.*Editor's Note:  The referenced attachment is not included with the reported opinion..  FN1. Non taxable income.*Editor's Note:  The referenced attachment is not included with the reported opinion.

Abery-Wetstone, Holly, J.