Barbara Cook v. Timothy Cook (2010)

MEMORANDUM OF DECISION FOLLOWING MOTION TO REARGUE

A review of the record reveals that the parties returned to court on June 2, 2010 to argue a variety of post-judgment motions.   The court issued findings of fact and issued orders.   The plaintiff had neglected to introduce into evidence bank records and payroll records regarding the defendant which she felt were crucial in the presentation of her case.   As a result, she filed a motion to reargue (239) which the court granted.   The parties returned to court on August 5, 2010 to reargue certain financial issues including whether the husband's 401(k) plan should be divided as to its value at the date of dissolution or the present date;  whether the money awarded to the plaintiff due to the husband's dissipation of assets during the marriage is a property distribution or an income stream includable in the child support guidelines analysis;  whether the defendant should be obligated to presently pay on the child support arrearage;  the amount of child support to be presently paid;  and whether the defendant is to be given an offset of $7,400 as found by the court (Boland, J.) on November 9, 2009.

At the time of dissolution, the court finds that the husband's 401(k) plan had a net value, after loans in the amount of $9,972 (the trial court, Gordon, J. had estimated its value as $20,000 but had neglected to factor in the 401(k) loan).   Since that time, the net value has increased significantly due to his having paid down the loan via automatic biweekly wage withholdings.   The plaintiff should not benefit from that post-judgment increase in net value.   Thus, the defendant is ordered to transfer to the wife's IRA account the sum of $9,972.

At the dissolution trial, the court ordered a division of assets and made findings that both parties had wrongfully dissipated assets.   As a result, in order to more fairly distribute the assets, the court ordered the defendant to pay to the plaintiff the sum of $46,000 at the rate of $10,000 per year payable quarterly.   Those sums are not to be construed as income but rather, a distribution of property and not includable in the wife's income for purposes of computing a child support order.

There exists a significant child support arrearage from the defendant to the plaintiff.   The defendant shall pay 20% of the current order or $42 toward the arrearage.

The parties argued numerous child support orders and in fact, the court considered five different sets of child support guidelines worksheets.   The plaintiff argued that all of the husband's overtime earnings should be considered but the court finds that only five hours of his overtime should be considered pursuant to the law.   The plaintiff also argued that the husband had suspicious deposits coming into his bank account but the defendant was able to explain them convincingly.   The court rejects the defendant's argument that the $10,000 per year payments to the plaintiff should be considered as income (see above).

The court found on June 2, 2010 that the wife has an earning capacity of $30,000 per year.   Thus, the court utilized the husband's gross income of $1,844 per week (including five hours of overtime) and the wife's earning capacity of $577 per week to arrive at a child support figure of $210 per week and an obligation that the defendant pay 50% of any unreimbursed medical and dental and work related day-care costs plus $42 per week on the arrearage.

Finally, the court orders that the defendant is entitled to a $7,400 offset on the arrearage owed to the plaintiff as found by the court, Boland, J. on November 9, 2010.

Shluger, J.

Shluger, Kenneth L., J.