Terren Gainer-Jennings v. Karl Jennings (2010)

MEMORANDUM OF DECISION

Terren Gainer-Jennings (whose maiden name was Gainer) and Karl Jennings were married on December 28, 1996, in New London, Connecticut.   She now sues for dissolution of that marriage.   Defendant was personally served and has appeared in the case.   This court has jurisdiction of the action and all statutory stays have expired.

The court finds that the marriage has broken down irretrievably.

Prior to their marriage, the parties had two children together, both of whom have now reached the age of majority.   Since the marriage, they have legally adopted Alex Julian Jennings, born August 24, 1999.   Subsequently, plaintiff adopted a daughter, Olivia Jennings, born October 22, 2008.   Defendant is involved in the life of this child, but for reasons not made clear has not perfected the adoption process as of the date of the hearing in this case.   Plaintiff receives $750 per month as an adoption subsidy from the state for each child.   Because the parental rights of Olivia's birth parents have been terminated, the court finds that she is the legal child of plaintiff only.   The parties have requested that the court retain jurisdiction to enter appropriate educational support orders for Alex's college education.   They agree that it would serve his best interests if they are awarded joint custody, primary residence to plaintiff and with reasonable rights of visitation to defendant.   Their only dispute as to the latter was whether father was spending sufficient time with his son.   The court finds that their agreement as to custody does reflect what is best for the child, although there is concern that their difficulties in communicating with each other makes their joint obligation of raising this boy to be a healthy and capable adult more complicated than it would otherwise be.   The court exhorts defendant to be as active in his son's life as circumstances allow, as the few years before the child will want little to do with either parent will pass quickly and the opportunity to help him grow into a man whom they can both be proud of will not come a second time.

The parties stipulated that their son may aspire to higher education, and request that the court retain jurisdiction to enter an educational support order at that time if necessary.

They are at odds as to how to distribute their real and personal property, and as to whether each should be ordered to pay alimony to the other.   In resolving their dispute, the court has heard considerable testimony from each party, has analyzed that evidence in consideration of all the factors set forth in §§ 46b-56c, 46b-81(c), and 46b-82 of the General Statutes, and makes all the findings set forth herein by a preponderance of the evidence.

Plaintiff is 44 years old.   She has been employed for the past fourteen years by the state of Connecticut.   She earns a gross income of about $50,000 per year.   Her job appears secure.   She has one year of college.   In addition to her earnings she receives the adoption subsidy from the state described above.

Defendant is 52 years old.   He has finished three years of college.   He has worked at least three jobs over the past fourteen years, including one at Caruso Music in New London;  another at Connecticut College;  and his third, a recent venture in self employment.   His earnings history is checkered, and he appears not to have earned more than $30,000 per year in all this time.   His present occupation is as a videographer/music provider for special events.   He can make up to $1000 on a contract in a short time period.   What is uncertain is how many jobs he will get at that rate.   The court deduces from his autobiographical narrative that he has left his two previous positions due to some degree of not fitting in with either employer.   His present ambitions may be quixotic, but no expert evidence was offered to prove or disprove his expectations.

Neither party reports any significant, chronic health problem.

As to child support, the court ascribes to defendant a present income of $320 weekly based upon his experience over the past thirteen weeks;  if his ambitions are fulfilled, plaintiff may seek to modify this in the future.   Child support guidelines indicate a current order of $51 weekly would be appropriate.   Defendant seeks a deviation downward until the marital residence is sold, reflecting the higher household maintenance costs he is bearing as plaintiff has moved out.   Alex is apparently receiving Husky insurance, or has in the past.

As to property issues, that residence, which has been the family home until they separated at the end of 2008, is jointly owned and their interests must be disentangled.   The residence has a fair market value of about $190,000, is subject to a mortgage with a balance of $92,000, and thus has equity of approximately $98,000 (in this market, in the view of this court, a hypothesis only).   They have owned this home for over ten years.   Plaintiff testified that it is readily marketable, whereas defendant cited numerous conditions which would deter prospective buyers.   As with so many other details of their dissolution, they have no common plan as to how to divide this asset.

The parties have two vehicles, a 2001 Honda Odyssey which is free of debt and a 2006 Honda Accord with a $6000 balance due upon it.   There is little cash or other liquid assets.   The parties have divided their furnishings and other tangibles to their mutual satisfaction.

The only other significant asset is a pension accrued to plaintiff's benefit through her employment with the state.   Neither party offered any evidence as to its present value.   Plaintiff testified credibly that given her age and her length of service, she will not qualify to receive this pension until 2028.   The court takes note that the government pension offset provisions of the Social Security law provide that her state pension, should she remain with the state until it is in pay status, will be in lieu of rather than in addition to social security benefits, whereas defendant has already qualified for social security retirement benefits at retirement age.   Further;  the parties disputed what had happened to the proceeds of defendant's withdrawal of his own 401-k account five years ago.   Defendant maintained that it went to pay family expenses, while plaintiff testified that he spent it on his own purposes.

Lastly, each party has substantial debt.   Plaintiff's consists of a $15,000 student loan balance incurred for the benefit of another son of the parties who has now reached the age of emancipation.   Defendant's consists of $30,000 of credit card debt which, like the 401-k proceeds, he claims went to purchase necessities for the family.   Defendant is quite insistent about the veracity of his claims, even charming, but he consistently avoided plaintiff's and the court's questions attempting to pin him down on the details of his assertions;  accordingly, the court credits the plaintiff's testimony as to the circumstances surrounding the disappearance of the retirement benefits and the accrual of the credit card debt.

The court has balanced all the foregoing equities;  thus, in light of all the evidence, it is hereby ORDERED:

1. The marriage is dissolved on the basis of irretrievable breakdown.

2. Plaintiff may resume the use of her maiden name, TERREN GAINER.

3. The parties are awarded joint custody of the minor child Alex, whose primary residence shall be with plaintiff.   Defendant may enjoy reasonable and liberal visitation with the child.

4. Pursuant to state guidelines, defendant shall pay child support in the amount of $51 per week.   However, in light of the present expenses of maintaining the family home, this order is suspended until the refinance or sale of the home as set forth in paragraphs 8 and 9, below.   Plaintiff may claim the child as a tax dependent, although a court modifying support in the future may modify this provision as well in the exercise of its discretion.

5. The court will retain jurisdiction to enter orders as to the college education expenses of the child, as defined and limited by Conn. Gen.Stat. § 46b-56c.

6. The parties shall continue to maintain Husky health insurance for their child until he completes his higher education, or reaches the maximum age of eligibility, whichever is earlier.   Each party is ordered, however, to enroll the child as an additional insured on any policy of health insurance which becomes available to that party whether as an employment benefit or otherwise, provided that the cost of so doing does not exceed the statutory maximum parental contribution as may then be in effect.   Plaintiff shall pay 80% and defendant 20% of any unreimbursed or uninsured medical needs of their son, effective immediately.   The provisions of Section 46b-84(e) with respect to insurance claims and payments shall apply in full.

7. Neither party shall pay alimony to the other.

8. Prior to December 15, 2010, defendant may opt to purchase plaintiff's interest in the parties' joint residence located at 109 Vauxhall St., New London, at the price of $25,000 plus removal of her name from the existing mortgage upon the property.   To exercise this option, he must inform her of his intention to do so not later than November 30, in writing, accompanied by proof of his having good funds with which to complete the transaction and commitment from the existing lender to release plaintiff from liability on the existing debt, or, if applicable, commitment from a new lender to provide funding sufficient to pay off the existing mortgage.   The purchase shall be completed by December 15, or the provisions of the next paragraph for sale on the open market shall take effect.

9. Should the residence not be so disposed of between the parties as of December 15, 2010, it shall be sold, according to the following schedule:

a) Not later than December 16, the property shall be listed with a licensed realtor for sale at $190,000.   By mutual agreement, the parties may agree upon a lower initial listing price;

b) On February 1, 2011, if no purchase offer has been received, the offer to sell shall be reduced by $3,000, and, on the first of each following month, the price will be further reduced by $3,000 per month, until sold;

c) Pending the sale, defendant may remain in occupancy of the property, and shall be responsible for payment of the mortgage, taxes and special assessments, insurance, and utility charges, and normal maintenance and repairs;

d) Upon the closing, after payment of the mortgage, legal fees, broker's commission and other usual and customary costs of closing, the net proceeds shall be equally divided between the parties, provided, however, that any items listed in the preceding subparagraph not paid by defendant between the date of this order and the closing shall be deducted from his proceeds.

10. Time is of the essence as to all provisions of the two preceding paragraphs.   This court will retain jurisdiction to accomplish the sale of this property.

11. Plaintiff is awarded all rights to her personal savings, her pension, and the 2006 Honda Accord, and she shall indemnify and hold defendant harmless as to the debt secured by that vehicle.

12. Defendant is awarded all rights to his personal savings, and the 2001 Honda Odyssey.

13. Each party shall be responsible for his or her own health insurance premiums on and after December 1, 2010.

Boland, J.

Boland, John D., J.