Richard Travers v. Roseann Travers (2010)

MEMORANDUM OF DECISION

The parties were married on October 11, 2008 in Wallingford Connecticut.   The plaintiff husband has resided continuously in Connecticut for at least one year prior to commencing this dissolution action.   The plaintiff is forty-six years old and the defendant wife is forty-four years old.   Both parties have minor children from previous relationships but no children are issue of this marriage.   Neither party received state, federal or municipal assistance during the course of their marriage.

The parties began dating after meeting at an out of state conference in January of 2008.¹  In May of 2008 the parties elected to live together and the defendant relocated from New Jersey to co-habitat with the plaintiff in his rented Wallingford condominium.²  In August of 2008 the parties purchased a condominium for $277,500.   The $55,000 down payment came solely from the defendant's funds.   Although both parties' names were listed on the deed, because of the defendant's limited income, the bank refused to allow the defendant to be a named party on the mortgage agreement.³

The plaintiff has a bachelor of science and is a registered nurse.   Until May of 2009 he was employed as the clinical director for the North Haven Pain Center.   Due to restructuring, his employment as clinical director terminated and in the latter half of 2009 he obtained employment with Yale New Haven Hospital at their shoreline facility in Guilford, Ct. The plaintiff currently nets $796.93 per week.

Prior to her relocation to Connecticut in 2008, the defendant, a high school graduate, was self employed with her own search engine website specifically targeted at New Jersey based businesses.   At the time of her 2008 relocation to Connecticut, she was taking a $3,000 draw once every two weeks from her business.   Upon relocation she had to dissolve the business but by the fall of 2008 she obtained employment as a banquet manager for the Sheraton or Crescent Hotel.   She just recently left that employment and in November 2010 she is to commence employment with United Chemical Technology (UCT) as a regional sales representative.   Her base gross salary will be $40,000/year but after six months of training she will be eligible to earn commissions.   She anticipates earning a greater income at UCT than she had previously enjoyed as a banquet manager.

The plaintiff believes the marriage irretrievably broke down in May of 2009.   The defendant pinpoints the breakdown to have occurred in January of 2009.   The plaintiff characterizes the decision to marry as a mutual mistake.   The defendant claims the plaintiff is to blame for the breakdown of the marriage in that he resented and was intolerant of her long and often late hours at work and her interactions with others.   The plaintiff testified that by July of 2009 he had concluded that to continue to live with the defendant created an unhealthy environment for himself and for his two minor children when they were with him.   The plaintiff therefore elected to move out of the marital residence and because he was unemployed and lacked financing he moved back in with his former wife.   Although the plaintiff initially lived platonically with his former spouse, they resumed a romantic relationship in 2010.⁴

The court finds the parties are equally at fault for the irretrievable breakdown of the marriage.

The court finds that it has jurisdiction of the matter presently before it.   All statutory stays have expired.   The court finds that the marriage has broken down irretrievably.   The marriage is hereby dissolved and the parties are declared to be single and unmarried.   After considering all of the statutory criteria set forth in C.G.S. § 46b-81, as to assignment of property and transfer of C.G.S. § 46b-63, as to restoration of birth name as well as the applicable case law and the title, evidence presented at trial, the court enters the following additional orders:

The major outstanding dispute between the parties centers around the $55,000 down payment for the marital condominium.   The defendant is now asking that the plaintiff reimburse her $27,000 (approximately one-half of the down payment.)   As stated previously, the parties purchased their condominium in August of 2008 for $277,500.   Both concede that upon determining their marriage had irretrievably broken down, they agreed to list the condominium for sale.   The condominium was initially placed on the market for sale in either February or March of 2009.   The parties took the condominium off the market in an attempt to try to reconcile and/or co-exist because of the decline in the real estate market.   The condominium was re-listed for sale in May of 2009 at a price lower than the August 2008 purchase price.   Apparently, in an attempt to further the sale process, on October 8, 2009, the court accepted a written agreement of the parties and entered the following pendente lite order:

1) The parties will keep the house listed for sale and make all reasonable efforts to sell same.

2) The court will retain jurisdiction over said sale.

3) The matter will be continued for monitoring until November 12, 2009 re the sale of the premises.

4) Ms. Travers will have exclusive possession of 408 Pilgrim Harbor Wallingford, Ct and will not allow any third people or person to remain overnight without her presence.

The condominium eventually sold on or about December 31, 2009 for $235,000.   Only the plaintiff attended the closing and as the seller he conveyed $7,406.26 to finalize the sale of the condo.⁵

The plaintiff claims the defendant knew she would incur a loss upon the sale of the condominium but nonetheless she insisted on proceeding with the sale because she just wanted “to get rid of it.”   The plaintiff further claims there was never any discussion or even any mention of the plaintiff reimbursing the defendant for any portion of the down payment.⁶  The plaintiff relies on the October 8, 2009 court order and the absence of any agreement between the parties as conclusive proof that he should not now be obligated for any portion of the $55,000.   Moreover, the plaintiff claims that had he known he would not be held harmless, he would not have agree to sell the condominium.   The defendant counters and initially claims she did not know for certain a loss would be sustained, but upon realizing the loss, there was never any understanding or discussion the $55,000 loss would be borne solely by her.⁷

The October 8th agreement/court order effectively operates as a contract between the parties.⁸

A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.  [Internal quotation marks omitted] Id. If a contract is unambiguous within its four corners, “the determination of what the parties intended by their contractual commitments is a question of law.”  (Internal quotation marks omitted.)   Id. Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d. 880 (2009).

Remillard v. Remillard, 297 Conn. 345, 355 (2010).

The October 8th agreement/order is utterly silent as to the $55,000 and offers no probative insight into the controversy at hand.   Prior to their 2010 court appearances, neither party ever specifically raised the $55,000 down payment with the other.   Although the parties discussed selling the condominium at a loss, the specifics of ‘the loss' were never discussed nor agreed upon.   The plaintiff made a calculated decision to rely on the defendant's silence as a tacit assumption by her of the total loss.   The court finds the defendant's silence was not contrived or intentionally misleading.   The $55,000 is a financial loss, incurred by both of the parties, as a result of their failed marriage.   Just as the plaintiff could have justifiably advocated for a portion of any profit, equity dictates the converse hold true.

However, the parties shall not share equally in the loss of the down payment.   The defendant retained possession of the marital furnishings and enjoyed exclusive use of the condominium for six of the sixteen months the parties owned it during their very brief marriage.⁹  Although both parties accuse the other of not contributing to the monthly expenses, the parties co-mingled their funds very early on in their relationship and both continued to pay, albeit at various times and at various rates, toward the monthly mortgage until December of 2009.¹⁰  Moreover, the defendant was forty-two years old when she decided to give up her own business and leave her home in New Jersey to move to Connecticut with her teenage daughter to live with a married man, a man who had only just vacated his former marital residence two month earlier, and whom she had known for only four months.   The wisdom of her decisions and choices are, at least in hindsight, difficult to ascertain, but at the time she was fully aware of the plaintiff's marital and financial situation.   She knowingly assumed the risks that accompanied her choices.   Therefore the plaintiff shall pay to the defendant $7,500.¹¹  Said payment shall be at a rate of $100/week until paid in full.   Said payment shall be in the nature of support and shall not be dischargeable in bankruptcy.   Said order shall not be a taxable event to either party.

The defendant's further requests for relief encompass alleged costs or debt she incurred for relocating ($2,900), reimbursement for traded in jewelry ($1,800) and payment toward a Capital One loan ($7,000).   For the reasons previously cited, the defendant's additional requests for relief are denied.

Other than the above $7,500 payment, any debt listed on the plaintiff's financial affidavit shall be his sole responsibility and any debt listed on the defendant's financial affidavit shall be her sole responsibility.

The defendant's maiden name of Diguglielmo shall be restored.

Bernadette Conway, Judge

FOOTNOTES

FN1. The plaintiff testified that when he first started dating his present wife his existing marriage was effectively over but due to financial constraints the plaintiff did not vacate his former marital home until March of 2008.   The defendant was aware of the plaintiff's marital status from the outset of her relationship with the plaintiff.   The plaintiff's first marriage was legally dissolved in July of 2008..  FN1. The plaintiff testified that when he first started dating his present wife his existing marriage was effectively over but due to financial constraints the plaintiff did not vacate his former marital home until March of 2008.   The defendant was aware of the plaintiff's marital status from the outset of her relationship with the plaintiff.   The plaintiff's first marriage was legally dissolved in July of 2008.

FN2. The defendant has a teenage daughter from a prior relationship.   The defendant's minor daughter also relocated from New Jersey and enrolled in the Wallingford public high school system in August of 2008..  FN2. The defendant has a teenage daughter from a prior relationship.   The defendant's minor daughter also relocated from New Jersey and enrolled in the Wallingford public high school system in August of 2008.

FN3. In either February or March of 2008, the defendant added the plaintiff's name to her Wachovia bank account.   The parties commingled their funds into that account and household expenses, including the mortgage, were jointly paid by the parties from that account..  FN3. In either February or March of 2008, the defendant added the plaintiff's name to her Wachovia bank account.   The parties commingled their funds into that account and household expenses, including the mortgage, were jointly paid by the parties from that account.

FN4. Although the plaintiff testified he did not resume a physical relationship with his ex-wife until approximately the summer of 2010, exhibit A, dated January 14, 2010 (but not court ordered until June 3, 2010) states the plaintiff and his ex-wife had reconciled.   Exhibit A reflects the court granted the plaintiff's and his ex-wife's requests that the plaintiff's ex-wife's $1,050.00 monthly obligation to him be terminated..  FN4. Although the plaintiff testified he did not resume a physical relationship with his ex-wife until approximately the summer of 2010, exhibit A, dated January 14, 2010 (but not court ordered until June 3, 2010) states the plaintiff and his ex-wife had reconciled.   Exhibit A reflects the court granted the plaintiff's and his ex-wife's requests that the plaintiff's ex-wife's $1,050.00 monthly obligation to him be terminated.

FN5. In March of 2009, the plaintiff withdrew $8,000 from the parties' joint Wachovia account.   The plaintiff justified the withdrawal of $8,000 as equaling his one-half of the $16,000 in the joint account.   The defendant presented evidence the Wachovia account prior to it becoming their joint account contained $5,000 of her funds and therefore the plaintiff erroneously withdrew a greater than 50% share in March of 2009.   Given the court's financial orders and the almost $8,000 the plaintiff proffered at the closing, no further discourse is necessary regarding the plaintiff's March 2009 withdrawal..  FN5. In March of 2009, the plaintiff withdrew $8,000 from the parties' joint Wachovia account.   The plaintiff justified the withdrawal of $8,000 as equaling his one-half of the $16,000 in the joint account.   The defendant presented evidence the Wachovia account prior to it becoming their joint account contained $5,000 of her funds and therefore the plaintiff erroneously withdrew a greater than 50% share in March of 2009.   Given the court's financial orders and the almost $8,000 the plaintiff proffered at the closing, no further discourse is necessary regarding the plaintiff's March 2009 withdrawal.

FN6. The first demand by the defendant of partial reimbursement for the down payment occurred when the parties appeared in court for an uncontested dissolution hearing in early 2010.   The defendant was self represented in the dissolution action until February of 2010..  FN6. The first demand by the defendant of partial reimbursement for the down payment occurred when the parties appeared in court for an uncontested dissolution hearing in early 2010.   The defendant was self represented in the dissolution action until February of 2010.

FN7. The defendant testified the plaintiff informed her that if she did not cooperate with the sale of the condominium he would cease paying his share of the mortgage.   Allegedly the plaintiff told the defendant he did not care if the bank foreclosed on the property.   The defendant claimed she was unaware of the fact that because her name was not on the mortgage, she could not be personally pursued for the payment of the mortgage.While the court does not find the defendant's claimed ignorance regarding her exposure on the mortgage credible, the court does credit the defendant's testimony regarding the plaintiff's opposition to her exploring the feasibility of acquiring a roommate or through her hotel employment a temporary tenant in the form of a relocating executive to generate rental income..  FN7. The defendant testified the plaintiff informed her that if she did not cooperate with the sale of the condominium he would cease paying his share of the mortgage.   Allegedly the plaintiff told the defendant he did not care if the bank foreclosed on the property.   The defendant claimed she was unaware of the fact that because her name was not on the mortgage, she could not be personally pursued for the payment of the mortgage.While the court does not find the defendant's claimed ignorance regarding her exposure on the mortgage credible, the court does credit the defendant's testimony regarding the plaintiff's opposition to her exploring the feasibility of acquiring a roommate or through her hotel employment a temporary tenant in the form of a relocating executive to generate rental income.

FN8. Clearly the court lacks jurisdiction to order the sale of marital property pendente lite.   The October 8th court order entered only as a result of an agreement reached by the parties..  FN8. Clearly the court lacks jurisdiction to order the sale of marital property pendente lite.   The October 8th court order entered only as a result of an agreement reached by the parties.

FN9. Without prior notification to the plaintiff, the defendant changed the locks on the condominium in approximately August or September of 2009..  FN9. Without prior notification to the plaintiff, the defendant changed the locks on the condominium in approximately August or September of 2009.

FN10. Prior to the late December 2009 closing, the defendant had already relocated to another residence..  FN10. Prior to the late December 2009 closing, the defendant had already relocated to another residence.

FN11. The court's order also take into consideration the $28,000 the plaintiff spent on the defendant's diamond engagement ring which remains the possession of the defendant..  FN11. The court's order also take into consideration the $28,000 the plaintiff spent on the defendant's diamond engagement ring which remains the possession of the defendant.

Conway, Bernadette, J.