Antonio Alves v. Denise Alves (2010)

MEMORANDUM OF DECISION

Both parties appeared and were represented by counsel.   All statutory stays have expired and the court has jurisdiction.

This action was instituted by the plaintiff in two counts.   In count one, he was seeking an annulment of the marriage, alleging that defendant did not have the intent to marry plaintiff and induced him into marriage based on false pretenses.   In count two, he seeks a dissolution of the marriage.

Having heard the testimony in this matter, the court concludes that plaintiff provided no credible evidence of defendant not having the intent to marry nor of any false pretenses of defendant to induce plaintiff into marriage.   Accordingly, the court denies plaintiff's request for an annulment of the marriage.

In regard to count two in which plaintiff seeks a dissolution of the marriage, the court finds as follows:

Plaintiff and defendant whose maiden name was Denise Claspell and whose previous married name was Denise Smith, intermarried on November 3, 2007 in Stonington, Connecticut;  that plaintiff has resided continuously in the State of Connecticut for more than one year prior to instituting this action;  that the parties have no children issue of this marriage;  that neither the State of Connecticut nor any municipality contributed financial assistance to the parties;  and that the marriage has broken down irretrievably without hope of reconciliation.

Plaintiff is a 62-year-old man in good health.   Prior to this marriage, he had been employed by the City of New London as a building inspector for 19-1/2 years and had accumulated the sum of $218,000 in his 401K plan.   Subsequent to his retirement from the City of New London, he was self-employed with a partner in the plumbing business.   Plaintiff testified that he was grossing approximately $65,000 per year and had a net yearly income of $35,000 after deducting taxes and business expenses.   He further alleges that he gave approximately $40,000 to defendant prior to their marriage and that his income from the plumbing business was deposited into their joint account during the two years of their marriage.

Defendant is a 54-year-old woman in good health who, at the time of the marriage, had been employed as a manager of a Fashion Bug retail store and was earning approximately $39,000 per year.   She testified that just prior to the marriage, she had approximately $90,000 on deposit at Citizen's Bank of which $15,000 belonged to her mother and she vehemently denied ever receiving any funds from plaintiff prior to their marriage.   Shortly after the marriage, defendant left her job at the Fashion Bug and became employed at Starbuck's Coffee for a shorter work week so she could help care for plaintiff's mother.

During the course of this two-year marriage, the incomes of both parties were being deposited into their joint checking account along with partial deposits of the rental income defendant received for her condo.   Their daily expenses were paid out of this account.   In June 2008, the parties purchased a home in Oriental, North Carolina for $242,500 and $40,000 was taken from this joint account towards said purchase and the remainder came from a home equity loan on the Stonington home owned by the plaintiff.   Upon the sale of the Stonington home on April 30, 2009, the home equity loan was paid off and the balance of the sale proceeds in the amount of $58,930.43 was deposited into the joint account.

Plaintiff seeks reimbursement of $145,000 from the defendant based on his claim for the balance of the proceeds from the sale of his Stonington residence;  his claim of $44,000 which he alleges was given to defendant prior to their marriage;  $20,000 from his mother's estate which he alleges was deposited into their joint account;  and $23,000 that defendant used from the joint account to pay her monthly mortgage payments on her own condo while retaining the rental income from the condo for herself.

Defendant testified that she deposited most of the rental payments into the joint account and used the balance of the rental income for daily living expenses.   With the exception of the balance of the proceeds from the sale of the Stonington residence, plaintiff failed to prove by a preponderance of the evidence that he had transferred such funds to the defendant.   The funds were co-mingled with defendant's funds and were no longer his separate assets.

Regarding plaintiff's claim for reimbursement of $59,930.43 as the balance of the proceeds from the sale of his pre-marital Stonington home on April 30, 2009, the court notes that $40,000 was taken from the joint account towards the purchase of the North Carolina home (see Plaintiff's Exhibit 10).   Defendant is entitled to a credit of one-half of the amount taken from the joint account for that purchase.   In addition, she testified that she spent some of the proceeds on furnishing the North Carolina home.   The plaintiff did not deny that defendant had spent money to furnish the North Carolina home, but claimed that some of the furnishings from the Stonington home had been sent to the North Carolina home.

Having heard the parties testify in this matter, observed their demeanor, considered the financial affidavits of the parties, the exhibits offered in evidence and the statutory criteria of Conn. Gen. Stats. §§ 46b-81 and 46b-82, the court concludes that the marriage is broken down irretrievably and a decree of dissolution may enter with the following orders:

1. Neither plaintiff nor defendant shall receive any alimony.

2. Each party shall be responsible for maintaining their own medical insurance coverage.

3. Plaintiff shall retain the residential real estate located in Oriental, North Carolina together with all the furnishings therein and defendant is ordered to quitclaim her interest in said real estate to the plaintiff within 30 days of this judgment.   Defendant shall retain the condo she owns in Groton, Connecticut free and clear of any claims by the plaintiff.   Each shall be responsible for payment of all expenses related to their respective properties and shall hold the other harmless therefrom.

4. Plaintiff shall retain his 401K plan having an approximate value of $210,000 and defendant shall retain her 401K plan having an approximate value of $40,000.   Plaintiff shall also retain his Liberty Bank business and personal checking accounts and defendant shall retain her Citizen's Bank and Savings Institute accounts.

5. Defendant shall retain title to the 2003 Mercedes vehicle and plaintiff shall retain the remaining motor vehicles.   Each party shall execute any necessary documents to transfer title to the aforesaid vehicles and shall be responsible for all expenses related to their respective vehicles.

6. Plaintiff claims reimbursement of the balance of proceeds from the sale of his Stonington home which funds were deposited into their joint account.   The court notes that the deposit and down payment for the North Carolina real estate was paid from the joint account and that defendant spent some of the proceeds to furnish the North Carolina home.   Accordingly, defendant is ordered to pay to the plaintiff within 30 days $29,465.21 as a net reimbursement of the proceeds from the sale of a pre-marital asset.

7. Each party shall be responsible for payment of their own debts and each shall be responsible for the payment of their own attorney fees.

8. Plaintiff shall return to defendant her family photos within 30 days of this dissolution judgment.

Goldberg, JTR

Goldberg, Joseph H., J.T.R.