Michael Buttram v. Veronica West-Buttram (2010)

MEMORANDUM OF DECISION

I BACKGROUND AND FACTS

Michael Buttram filed this action on September 29, 2009, seeking the dissolution of his marriage to the defendant, Veronica West-Buttram, whose maiden name was West at the time of the marriage between the parties on September 28, 2000, in Meriden.   There are three minor children born issue of the marriage;  Mekaja West-Buttram born on October 18, 2000, Mekhi West-Buttram born on December 9, 2002, and Jayvon West-Buttram born on September 23, 2008.   The parties and the children have resided continuously in this state for more than one year before the date of this dissolution.

This dissolution action was heard by the court on October 26, 2010.   The parties entered into a custody and access agreement on the eve of trial, as recommended by the guardian ad litem, which is incorporated into this judgment.   Therefore, the issues in dispute at the trial were limited to financial orders.   In particular, the parties dispute the plaintiff's ability to work overtime, as he has in the past, in order to support an award of alimony.   The defendant further claims alimony is necessary, to maintain the marital home for her use and the parties' three minor children, as well as the defendant's two other minor children from a previous relationship, who have lived with the parties during their marriage.

The title and mortgage on the marital home, located at 203 Tremont Street in New Britain, are held exclusively in the plaintiff's name, primarily due to the defendant's poor credit.   In addition, the defendant has had problems with the IRS, involving allegations of fraud with other family members, in which she claims to have played only a passive role.   She has nonetheless contributed to the income of the family and has, at times, earned more than the plaintiff in contributing support for family expenses.

Unfortunately, the marital home has no remaining equity and has been the subject of a foreclosure for approximately one year.   Although there have been mediated settlements in the past, the defendant has failed to make any payments pursuant to the first mediated mortgage agreement, entered into during October of 2009.   This mediated settlement provided for a substantially reduced monthly mortgage payment of $642.   However, due to the defendant's unemployment and limited resources at that time, she was unable to meet the requirements of the modified mortgage, notwithstanding the plaintiff's compliance with his weekly pendente lite orders of November 4, 2009, Fischer, J., to pay child support in the amount of $254, and a payment intended for the mortgage in the amount of $125.   In an attempt to save the modified mortgage, the plaintiff was ordered by the court, Dolan, J., on February 9, 2010, to make the $125 mortgage payments directly to the bank.   These payments, however, were refused by the mortgage holder.

The defendant has been employed by Residential Management Services, working the third shift at the hourly rate of $10.40, since April of this year, and is now employed full-time with gross earnings of $406 per week.   Supplemented by food stamps and child support payments, her current net weekly earnings are $740, which amount has increased by $20 since the last financial orders of the court, Taylor, J., were entered by agreement of the parties on July 13, 2010.   In these most recent orders, the $125 mortgage payment order was vacated and substituted with a $75 weekly order of alimony, without prejudice to the plaintiff.   Although the defendant may be qualified for earning a higher income, the court concludes that she is working to maximize her employment skills in light of caring for five minor children at home and her willingness to seek additional employment on a part-time basis.   Since she became employed on a full-time basis, the defendant claims to have renegotiated the mortgage modification to $672 per month in June 2010;  however, the plaintiff refused to sign the modification agreement because the defendant's failed to comply with the earlier, October 2009 modification agreement.   Although it would be speculative for the court to conclude that a mortgage modification would be offered again by the mortgage holder, the expense associated with an apartment of sufficient size to accommodate the defendant and her five minor children is prohibitively higher than this mortgage payment, based upon the defendant's testimony which the court finds to be credible.   Therefore, the court finds it to be in the best interest of the three children of this marriage to be housed in the marital home, so long as it is legally and economically possible for the defendant to do so.

Historically, the plaintiff has worked long hours to meet the economic needs of his family.   His financial affidavit of July 13, 2010, shows gross weekly earnings of $1,601.   Since he now makes generalized claims of stress and depression, he has reduced his weekly hours of employment to those mandated by his employer, the State of Connecticut.   Therefore, he now claims gross income of $1,097 on his financial affidavit, dated October 26, 2010.   Although he has reduced his hours at the recommendation of his general physician, he has sought no treatment whatsoever for the maladies he now claims to suffer.   Without further expert testimony, the court cannot conclude as a matter of fact that the plaintiff is unable to work more hours than mandated by his employer, Connecticut Valley Hospital (CVH).

The plaintiff has also admitted to historic infidelity, particularly during the early years of the marriage and very soon after the birth of the parties' second child in 2002.   Based upon the testimony of the defendant, the court finds the plaintiff's infidelities to be more numerous than those admitted in court, and that this pattern of adultery has continued and caused the break-up of this marriage.   Within a year after the birth of their third child, the plaintiff left the marital home on August 28, 2009, and soon thereafter, signed a lease in September for an apartment in Middletown with Tanya Long, a woman with whom the plaintiff works at CVH, and with whom he has been living continuously since December of 2009.

II FURTHER FINDINGS AND ORDERS

After reviewing the evidence and evaluating the testimony of the parties, the court makes the following findings, in addition to the findings of fact made by the court, infra.   The court has jurisdiction in this case and the marriage has broken down irretrievably with no reasonable expectation of reconciliation.   The parties and their children have received state or municipal assistance during the course of the marriage.   Based upon these findings, the marriage of the parties is ordered dissolved, effective this date of judgment, and the court issues the following orders concerning custody, support and property:

A. Custody and Access

1.  As agreed upon by the parties, the parents shall have joint custody of their minor children, Mekaja Lashea West-Buttram, born October 18, 2000;  Mekhi Shyheim West-Buttram, born December 9, 2002;  and Jayvon Q. West-Buttram, born September 23, 2008.   Primary residence shall be with the defendant mother.

2. When school is in session, the plaintiff father shall enjoy parenting time with the minor children every other weekend from Saturday morning at 11:00 a.m. to Sunday evening at 7:00 p.m., as well as from 11:00 a.m. to 7:00 p.m. with the youngest minor child on any weekday that the plaintiff father does not work, and 3:00 p.m. to 7:00 p.m. with the two older minor children on any weekday that plaintiff father does not work.

3. When school is not in session, plaintiff father shall enjoy parenting time with the minor children every other weekend from Saturday morning at 11:00 a.m. to Sunday evening at 8:30 p.m., as well as from 11:00 a.m. to 8:30 p.m. on any weekday that plaintiff father does not work.

4. Pick-ups and drop-offs of the children shall occur at the home of the defendant mother's sister, Karen, with the exception of Fridays.   If plaintiff father has parenting time on a Friday, he shall return the children to the defendant mother s home.

5. Parties shall have the following holiday schedule:

a.  Every Thanksgiving;  defendant mother shall have from 9:00 a.m. to 3:00 p.m., and plaintiff father shall have from 3:00 p.m. to 9:00 p.m.

b. Every Christmas Eve, defendant mother shall have from 11:00 a.m. on December 24 to 11:00 a.m. on December 25.

c. Every Christmas Day, plaintiff father shall have from 11:00 a.m. on December 25 to 11:00 a.m. on December 26.

d. Defendant mother shall have every New Year's Eve from 11:00 a.m. on December 31 to 11:00 a.m. on January 1.

e.  Plaintiff father shall have every New Year's Day from 11:00 a.m. on January 1 to 11:00 a.m. on January 2.

f. Every Easter, defendant mother shall have from 9:00 a.m. to 3:00 p.m., and plaintiff father shall have from 3:00 p.m. to 9:00 p.m.

g. Defendant mother shall have every mother's Day, from 11:00 a.m. to 7:00 p.m.

h. Plaintiff father shall have every father's Day, from 11:00 a.m. to 7:00 p.m.

6.  Each parent shall have two non-consecutive weeks of vacation time with the minor children each year.   Such vacation weeks are not subject to the regular parenting schedule, however they do not supersede the holiday schedule.   Parties shall give the other parent at least 30 days notice of their intended vacation time, as well as an itinerary including contact information if they plan to travel with the children.   In the event that parties select the same or overlapping vacation time, in 2010 and all even years thereafter, defendant mother shall have preference for her desired vacation time.   In 2011 and all odd years thereafter, plaintiff father shall have preference for his desired vacation time.

7. The parties shall participate in the Families in Transition mediation program at The Children's Law-Center.

8. The parties shall report back on April 27, 2011 for review.

B. Child Support

Based upon a forty-five hour work-week and the actual income of the plaintiff over the past 14 weeks,¹ the court will use the gross income figures of $1,095 for the plaintiff and $406 for the defendant.   Based upon these numbers, the Child Support Guidelines provide for, and the court orders, presumptive child support in the amount of $268, with unreimbursed medical expenses divided as follows:  52% paid by the defendant and 48% paid by the plaintiff, with the same percentage paid for work-related child care.   The parties shall also share the cost of any and all agreed-upon extracurricular activities.

Parties shall provide health insurance for the minor children through their employment if available at a reasonable cost, not to exceed 7.5% of net income.   The children are already enrolled in the plaintiff's medical plan at his place of employment.   The plaintiff has coverage under Anthem Blue Cross and Blue Shield of CT. The defendant and her other two children are on Husky.   If unavailable through the parties' employment at a reasonable cost, the parties shall enroll the children on HUSKY insurance or other state equivalent.

This Court shall retain jurisdiction for post-secondary education support of the minor children.

C. Alimony

The statutory authorization for the award of alimony in dissolution cases is provided in General Statutes § 46b-82,² and “the purpose of both periodic and lump sum alimony is to provide continuing support.”  Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005).   Based upon the facts of this case, and having considered all the statutory factors pursuant to General Statutes § 46b-82, the defendant shall pay to the plaintiff alimony in the amount of $50 per week for a period of five (5) years from the date of the dissolution.   Together with the current child support order of $268, the plaintiff will receive a weekly total of $318 in allocated support.   The alimony award is non-modifiable as to duration, but shall terminate upon the death of either party or upon the remarriage of the defendant.   The award is modifiable in the event of a substantial change in circumstances by either party and in the event of the defendant's cohabitation as defined by statute.

The court further orders $1 of alimony payable to the plaintiff by the defendant, modifiable only for the purpose of any liability arising from the hold harmless provisions of the property, liability and real estate transactions, discussed infra.

D. Real Property

The primary issue disputed between the parties involves the disposition of the marital home, located at 203 Tremont Street in New Britain, Connecticut.  “The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well ․ General Statutes § 46b-81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property.”  (Citations omitted;  internal quotation marks omitted.)  Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004);  see Clark v. Clark, 115 Conn.App. 500, 505, 974 A.2d 33 (2009);  also see General Statutes § 46b-81.³

In considering the statutory criteria delineated in General Statutes § 46b-81 for the disposition of this property, “no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case.”   Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989), (quoting Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980)).   In addition, “[t]here are three stages of analysis regarding the equitable distribution of each resource:  first, whether the resource is property within § 46b-81 to be equitably distributed (classification);  second, what is the appropriate method for determining the value of the property (valuation);  and third, what is the most equitable distribution of the property between the parties (distribution).”  Czarzasty v. Czarzasty, 101 Conn.App. 583, 588-89, 922 A.2d 272, cert. denied, 284 Conn. 902, 931 A.2d 262 (2007).

The plaintiff estimates the fair market value of the marital residence to be $128,500.   As of October 18, 2010, the current principal balance is $125,657, with an outstanding arrearage due of $9,488.   Plaintiff's Exhibit 3. In her proposed orders, the defendant seeks exclusive possession of the home.   In particular, she proposes that “[t]he Court to order the plaintiff husband to cooperate with saving the house from foreclosure and modifying the loan so that the defendant and the minor children may reside there.   The Court to further order the defendant wife to take full responsibility for each and every mortgage payment and all property taxes and other related fees and hold the plaintiff husband harmless.”

The court adopts the defendant's proposed order, except that the defendant may purchase the home from the plaintiff for a period of five (5) years for the purchase price of the amount owed on the then existing mortgage.   The purchase price shall include all taxes owed and any liens as of the date of this judgment, free and clear of any future liens, except those which may have been incurred by the defendant's liability after the date of judgment.   The defendant shall give written notice of her intent to purchase the property, which notice shall be made no later than six months prior to the expiration of the five-year period to purchase the property pursuant to this order.

The court further orders that the defendant's right to purchase the home and responsibility for such payments shall only be for as long as she resides in the marital home.   In the event that she chooses to vacate the marital home, she shall give sixty (60) written days notice of her intent to vacate the premises, for which she shall be liable for payments, which may be exercised at any time within four and a half years of this judgment and shall be binding upon her.   The court adopts this order in light of the vital need to house five minor children, three of whom are issue of this marriage, as well as the cause of the marital breakdown, which the court substantially attributes to the plaintiff.⁴

The court retains jurisdiction to resolve any issues that may occur as a result of the real estate transactions involving the marital property located at 203 Tremont Street in New Britain, Connecticut.

E. Other property

1.  Personal property

The parties have divided their personal property to their mutual satisfaction.

2. Automobiles

Both cars are in the plaintiff's name with loans encumbering each.   The plaintiff shall keep the Ford Explorer in his possession, as listed on his financial affidavit.   The defendant shall make all car payments due on the GMC Envoy in her possession.   The parties shall retain and insure the motor vehicles they currently drive, holding the other party harmless with regard to any liability, taxes and fees associated with the vehicle in their possession.   If the defendant fails to make any such payments in a timely manner, the plaintiff may take possession of the vehicle.   The defendant shall have eighteen months to purchase or refinance the GMC Envoy for the debt owed thereon, after which the plaintiff may take possession of the vehicle.

3. Pension Plan

As requested by the defendant, the plaintiff shall transfer to her, by way of QDRO or equivalent instrument for public employees, a 50% interest in all of his pension and retirement funds, including his defined pension and 403b plan, utilizing one instrument on these pension or retirement assets, if possible.   The parties shall utilize an agreed-upon attorney such as Elizabeth McMahon, and all fees shall come from the balance of the savings bonds, discussed infra, with the remainder of fees, if any, shared equally by the parties.

4. Savings Bonds

The plaintiff shall cash in all of his savings bonds in the estimated amount of $3619.00 and pay the following liabilities, as shown on the defendant's financial affidavit, which the court finds to be joint marital liabilities:  AT & T in the amount of $212.00;  CL & P in the amount of $2,000.00;  and Comcast in the amount of $412.00.   In addition, the QDRO or equivalent prep fees estimated at 700.00 shall also be paid from such proceeds.   The balance of any remaining savings bond funds shall be equally shared by the parties.

F. Taxes

The parties shall alternate claiming the children on their tax return, with the plaintiff claiming two children and defendant one child in 2010 and in all even years thereafter, and defendant claiming two children and the plaintiff claiming one child in 2011 and in all odd years thereafter.   At such time when only two children may be claimed, they shall be shared until such time as there is only one eligible dependant, who shall be claimed first by the plaintiff and alternated thereafter.

G. Life Insurance

The plaintiff shall name the children as beneficiaries on a minimum $100,000 life insurance policy if it is available to him at a reasonable cost, so long as they are eligible for support under General Statutes §§ 46b-84 and 46b-56c.

H. Liabilities

The parties shall be responsible for their own personal debts as listed on their financial affidavits, other than those paid by the savings bonds, discussed supra, and shall hold each other harmless thereon.

I. Counsel Fees

The parties shall be responsible for their respective counsel fees.

SO ORDERED

BY THE COURT

Mark H. Taylor, J.

FOOTNOTES

FN1. The child support guidelines require the average of 13 weeks of income;  however, in light of the plaintiff's biweekly paychecks, 14 weeks have been used for this calculation.   The court further notes that the 45-hour workweek income assumption is approximately the same as the 14-week period of actual earnings..  FN1. The child support guidelines require the average of 13 weeks of income;  however, in light of the plaintiff's biweekly paychecks, 14 weeks have been used for this calculation.   The court further notes that the 45-hour workweek income assumption is approximately the same as the 14-week period of actual earnings.

FN2. General Statutes § 46b-82 provides:  “(a) At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to Section 46b-81.   The order may direct that security be given therefore on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to Section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”.  FN2. General Statutes § 46b-82 provides:  “(a) At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to Section 46b-81.   The order may direct that security be given therefore on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to Section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”

FN3. The provisions of General Statutes Section 46b-81 are as follows:  “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under Section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other.   The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. (b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of Section 52-500.   When the decree is recorded on the land records in the town where the real property is situated, it shall affect the transfer of the title of such real property as if it were a deed of the party or parties. (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of Section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”.  FN3. The provisions of General Statutes Section 46b-81 are as follows:  “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under Section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other.   The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. (b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of Section 52-500.   When the decree is recorded on the land records in the town where the real property is situated, it shall affect the transfer of the title of such real property as if it were a deed of the party or parties. (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of Section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

FN4. Ordinarily, this transaction would involve a refinance of the mortgage in the defendant's name alone.   However, in view of the fact that the defendant has neither title nor a mortgage, the court makes reference to a purchase.   The court has not ordered an immediate transfer of title to the property in view of the fact that the defendant has recently reentered the workforce and may not be a viable candidate for a mortgage at this time..  FN4. Ordinarily, this transaction would involve a refinance of the mortgage in the defendant's name alone.   However, in view of the fact that the defendant has neither title nor a mortgage, the court makes reference to a purchase.   The court has not ordered an immediate transfer of title to the property in view of the fact that the defendant has recently reentered the workforce and may not be a viable candidate for a mortgage at this time.

Taylor, Mark H., J.