Jon D. Smith v. Sandra L. Smith (2010)

MEMORANDUM OF DECISION

The parties appeared represented by counsel.   All statutory stays having expired, the court has jurisdiction.

Having heard the evidence, the court finds as follows.

The plaintiff and the defendant, whose maiden name was Parker, intermarried at Niagara Falls, New York on April 15, 2000;  that the plaintiff has resided continuously in Connecticut for a period of one year next preceding the date of the filing of this complaint;  that there are two minor children issue of the marriage of the parties, Zachary W. Smith, born on March 19, 2001 and Molly A. Smith, born on May 17, 2002;  that there were no other minor children born to the plaintiff since the date of the marriage of the parties;  that the marriage has broken down irretrievably;  that there is no hope of reconciliation and that no state agency is presently contributing to the care or welfare of the parties.

The plaintiff, who was born on May 28, 1975, is a Chief Petty Officer in the U.S. Navy. He has a gross income of $1,431 per week and a net weekly income of $1,317.   See Defendant's Exhibit 2.

The defendant, who was born November 26, 1975, is presently unemployed.   Her last employment was two years ago.   She claims she is unable to get any substantial employment because of her physical condition.   She suffered a knee injury in an automobile accident.   Subsequent thereto she has had five knee surgeries, a gastric bypass and an injury to her arm.   She testified that she may have another surgery for her elbow in the future.

Defendant applied for Social Security disability three years ago but was denied.   However, since then she has had many surgeries, as indicated above, and intends to file again for Social Security Disability as soon as she can see her doctor and get a medical report from him.

During their marriage the parties purchased the marital residence located and known as 343 Gay Hill Road, Uncasville, Connecticut.   The down payment of $25,000 was paid by the defendant from the proceeds she received in her accident settlement.   Presently the property is encumbered by a mortgage and home equity loan totaling between $190,000 and $192,000.   Defendant claims the equity in said marital property is $20,000;  plaintiff claims it is $11,500.   Plaintiff is willing to quitclaim his interest in said property to the defendant provided he is held harmless by defendant on the mortgage and equity loan.   However, he prefers that the property be sold as he believes the defendant will not be able to maintain said property.   Presently, plaintiff is paying the mortgage and all expenses of said property but will discontinue to do so after the dissolution of the marriage.

According to his most recent financial affidavit, plaintiff has a Navy pension of an unknown value, which vests when he retires.   However, if he should die before he retires, the pension has no value.   Plaintiff has accumulated 12 1/2 years on his pension.   He admits that 125 months of the accumulated pension accrued during his marriage to the defendant and he is willing to transfer 50% of that accrual to the defendant.

The parties also own a 2004 Chevrolet Silverado valued at $11,000 and a 2006 Chevrolet Malibu Maxx valued at $9,500.   Both vehicles are subject to a consolidated loan by Navy Federal Credit Union (NFCU) of $13,987.   The plaintiff is willing to transfer his interest in the Chevrolet Silverado to the defendant, pay the $13,987 loan and hold the defendant harmless therefrom.

The plaintiff also has a $400,000 life insurance policy with SGLI. He is willing to name the parties' children as irrevocable beneficiaries until the youngest child reaches 21 years of age.   He is also willing to name the defendant as trustee of said proceeds during said period subject to Probate Court supervision.

The court makes no order as to the other personal property of the parties not discussed herein as parties have mutually agreed to a distribution of same.

During the pending dissolution proceeding, plaintiff gave to the defendant for her attorneys fees $1,400 which was half of a bonus plaintiff received.

The remaining assets of the parties will be included in the court orders set forth hereinafter.

Although neither party offered any evidence of fault as to the cause of the breakdown of the marriage, it is clear that the marriage of the parties has broken down irretrievably and without any hope for reconciliation.   Accordingly, a judgment is entered dissolving the marriage of the parties on the grounds of irretrievable breakdown.

After considering the pertinent statutes, the parties' proposed orders and the court's findings, it is ordered that:

1. The parties shall share joint legal custody of said minor children with primary residence with the defendant, subject to the following:

a. The plaintiff shall have open and liberal access to the children, minimally every other weekend beginning at 6 p.m. on Friday afternoons, if the children have school, until 5 p.m. Sunday night before school.   If the children are out of school on Friday, the access will start at Thursday afternoon (work schedule permitting) at 6 p.m. If the children do not have school on Monday, the visitation shall conclude on Monday at 5 p.m. (Work schedule permitting.)

b. The plaintiff shall have other access as the parties shall agree.   Such agreement shall not unreasonably be withheld.

c. The plaintiff shall have reasonable phone access with the children.

d. The above access may be modified due to the plaintiff's work commitments, work trips and deployments.

e. Neither party shall in any event or circumstance use the child as a means of communication or a conduit for information.

f. Neither parent shall do or say (or allow others to do or say) anything that may estrange the child from the other parent or injure the opinion of the child as to the other parent or that may hamper the free and natural development of the child's love and respect for the other parent.

g. Each parent shall be entitled to complete information from any teacher, physician, dentist, psychologist, psychiatrist, consultant or specialist attending to the child for any reason whatsoever and shall be furnished with copies of any and all reports and documentation available regarding such upon reasonable request.

h. When dealing with those issues upon which the parties disagree, neither shall belittle nor begrudge the other parent their household rules and policies and both shall do their best to respect and support the other parent regarding such.   The parties shall use their best efforts to discuss matters involving general rules of conduct, such as prohibited activities and shall attempt to seek agreement and adopt a harmonious policy suited to the best interest of the child.

i. The parties shall alternate holidays with plaintiff having Thanksgiving and the defendant Christmas for 2010.   Vacations shall be mutually agreed by the parties.   The court shall retain jurisdiction as to vacations.

j. Both parents shall be allowed to participate in all school activities that the minor children are involved in, both can participate in educational meetings, as well as any medical meetings that occur.

k. Each party shall at all times keep the other informed of his/her place of residence (including address and telephone number).

l. At no time shall the child be left without appropriate supervision.

m. If either party knows of any illness or accident or other circumstance seriously affecting the health or welfare of either child, he/she shall promptly notify the other and both parties shall have reasonably unlimited access to the child, consistent with the circumstances, for so long as the situation continues.

n. At no time shall the parties attempt to resolve any conflict in the presence of either child nor shall the parties negotiate directly with the child with regard to any change in the schedule of access time, either during their own access time with either child or over the telephone.   All changes in the access schedule shall be negotiated directly between the parties.

o. The parties shall arrange weekday time to enable the father to obtain military ID cards for the minor children so they can access the military base for medical appointments with the mother.

2. The defendant shall claim Zachary each year for any and all income tax purposes each year and the plaintiff shall claim Molly each year.   When only one child is able to be claimed, the parties shall alternate the deduction each year with the plaintiff taking the odd numbered years and the defendant the even numbered years.

3. Each party shall pay for their own medical insurance.   The plaintiff shall maintain medical and dental insurance for the benefit of the minor children as provided by his current employer.   Any unreimbursed medical and daycare expenses of the children shall be paid equally by the parties.

4. The court shall retain jurisdiction relative to support and expenses of post-secondary education costs for said minor children.

5. The plaintiff shall name his children as irrevocable beneficiaries of his life insurance policy until the youngest child reaches 21 years of age or until said children finish their post-secondary education, whichever is last to occur, and name the defendant as trustee of the insurance benefits for the children subject to probate court supervision.

6. The plaintiff shall quitclaim to the defendant his interest in said marital residence at 343 Gay Hill Road, Uncasville, Connecticut within 30 days of this dissolution.   The defendant shall hold the plaintiff harmless on the mortgage and equity loan on the premises and all expenses of ownership.   She shall attempt to refinance said mortgage and equity loan within three years and remove plaintiff's name from said loans.   If unable to do so, said property shall be listed for sale with a licensed real estate agent at the then fair market value of said property.

If defendant defaults in the mortgage and equity loans for a period of two consecutive months, she shall immediately put said residence up for sale as indicated above.   Defendant shall keep all net proceeds received from the sale.   If said property is foreclosed due to defaults in the mortgage payments by the defendant, she shall be solely responsible for any deficiencies resulting from any foreclosures.

7. a.   The plaintiff shall keep the 2006 Chevrolet Malibu Maxx as indicated above.   He shall pay any loan on said automobile and hold the defendant harmless therefrom.   Further, he shall be solely responsible for all expenses of ownership.

b. The plaintiff shall transfer sole ownership of the 2004 Chevrolet Silverado to the defendant who shall be responsible for all expenses of ownership except the consolidated equity loan.   He shall pay the present existing loans on said automobile and hold the defendant harmless therefrom.

8. a.   The plaintiff shall pay to the defendant as unallocated alimony and support the sum of $550 per week for six years, her death, remarriage or cohabitation with an unrelated person pursuant to Conn. Gen. Stats., whichever is the first to occur.   Said alimony and support shall be paid bimonthly by direct deposit in the defendant wife's bank account at the rate of $1,100.   The defendant shall provide the plaintiff with her bank account number within one week of the dissolution of their marriage for said payment.   Further, said amount is modifiable as to amount if the defendant obtains Social Security disability income and/or begins employment.   Said unallocated alimony and support shall be included as income to the defendant and deductible by the plaintiff from his income taxes.

b. In addition, the plaintiff shall pay to the defendant $1 per year alimony until said consolidated equity loan is paid in full or plaintiff receives a release of said Silverado from said loan, whichever is the first to occur.   Said $1.00 per year alimony is modifiable only if plaintiff defaults in paying said loan and only in an amount necessary to pay said loan and interest thereon until said automobile is free of the loan.

c. No alimony is awarded to the plaintiff.

9. The plaintiff shall transfer to the defendant one-half of the value of plaintiff's pension which accrued during the parties' marriage.   Plaintiff's attorney shall prepare any documents necessary to fulfill this order.   The court will retain jurisdiction.

10. The plaintiff shall pay all the credit card debts and NFCU debts listed on the parties' financial affidavits dated September 15, 2010 and September 14, 2010 except the USAA credit card debt of $11,000 listed on defendant's financial affidavit.   Each shall indemnify and hold the other harmless from the debts each is obligated to pay.

11. The plaintiff shall keep his NFCU accounts and his Thrift Saving Plan. The defendant shall keep the NFCU account of $400 listed on her financial affidavit.

12. Each party shall pay their own attorneys fees.

Vasington, J.T.R.

Vasington, Paul M., J.T.R.