Karen Garceau v. Albert Garceau (2010)

MEMORANDUM OF DECISION

The plaintiff, who was a resident of Lisbon, Connecticut, initiated this action for dissolution of marriage with a complaint that was returned to the court on December 1, 2009.   At the time the defendant was a resident of Lisbon, Connecticut.

The court finds that it has jurisdiction and that all statutory stays have expired.

A limited contested trial was held before the undersigned on October 28, 2010.   Both parties appeared at trial and were represented by counsel.

The court has fully considered the criteria of General Statutes §§ 46b-81 and 46b-82, as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that the following facts were proven by a preponderance of the evidence:

1. The plaintiff, whose maiden name was Koziol, and the defendant were married on July 26, 2003 at Lisbon, Connecticut.

2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.

3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.

4. There have been no children born to the wife since the date of the marriage.

5. Neither party has received assistance from any State or local agency.

6. This is a second marriage for each party.   The husband has no children and the wife has two children, aged 17 and 15, from a previous marriage which ended in divorce.   The husband has acted as the father/stepfather to the children until recently when those relationships showed signs of estrangement.

7. At the time of the marriage, the wife had a 401(k) plan valued at approximately $15,000 (which is now valued at approximately $21,150), a brokerage account from the insurance proceeds of her previous husband's death in the approximate amount of $155,000, and a home valued at $210,000 with a $90,000 mortgage ($120,000 of equity).

8. At the time of the marriage the husband had approximately $53,000 from the sale of his previous home and was working toward his pension with the state of Connecticut.

9. The cause of the dissolution is found to be mutual.

10. The parties have been separated with the husband vacating the marital residence.   At the time of the marriage, the wife owned said marital residence which was then valued at $210,000 with a $90,000 mortgage or $120,000 of equity.   The parties decided to knock down and rebuild said home with the wife contributing most of her $155,000 life insurance proceeds and the husband contributing most of his $53,000 proceeds from his previous home.   In addition, the parties retired the $90,000 mortgage but took out a new $240,000 mortgage to end up with a home valued at $380,000 with a $211,000 mortgage or $169,000 of equity.   Clearly and unfortunately the parties spent far in excess of the $49,000 increased equity to arrive at their present position.   While each party had reasons to blame the other for this scenario, the court deems the blame to be irrelevant;  it was mutual.

11. There presently exists as marital assets the marital home presently valued at $380,000 with a mortgage of $211,000 (net equity $169,000), the wife's car valued at $13,000, the wife's bank account valued at less than $2,500, the cash value of the wife's life insurance valued at $5,000, the wife's marital and premarital retirement accounts valued at $26,000, the furniture and appliances in the marital residence valued at $15,000, the husband's vehicles valued at $4,000, the husband's bank accounts valued at $8,000, the cash surrender value of the husband's life insurance valued at $4,700 and family tools valued at approximately $8,000.   In addition, the parties own a motor home valued at $15,000 with a debt of $30,000, the husband's workers' compensation heart and hypertension award of unknown value and the husband's accumulated sick pay, vacation and holiday pay estimated to be in the approximate range of $30,000, payable over three years upon his retirement.   The principal asset is the husband's retirement pension with the state of Connecticut.   James Gobes, an expert witness testifying in his capacity as a consulting actuary testified that said pension is presently valued at $661,000;  $196,000 of which is premarital and $465,000 of which was accumulated during the course of the marriage.

12. The parties' debt includes the husband's credit card in the amount of $3500 and the wife's credit cards in the amount of $380.

13. The parties stipulated and agreed that the wife would remain in the marital residence with her two minor children and assume the debt associated therewith by refinancing the existing mortgage.   They did not agree if the husband was entitled to some of the home's equity.   In order to qualify for said mortgage refinance, the wife is required to have an additional $100 per week in income and to maintain a bank balance of $2,500, a sum which she presently lacks by a small amount.

14. While both parties have lost most of what they invested into the home's rebuilding, the wife lost much more and will be leaving the marriage with much less, given the value of the husband's pension.

15. The wife is 44 years old and is in good health.   The husband is 52 years old.   He has had two significant back surgeries and suffered a heart attack in 2007.   Nonetheless, he is presently working full time as a corrections officer with no restrictions.   He looks forward to retiring at the earliest possible date of February 1, 2011 to collect his pension, although the court finds that he has an earning capacity to either continue working at his present job or to find a new job in addition to his pension.

LEGAL DISCUSSION

“The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”   Gervais v. Gervais, 91 Conn.App. 840, 841, cert. denied, 276 Conn. 919 (2005).

Regarding the distribution of property, Connecticut General Statutes § 46b-81 states:

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.

The court in McKenna v. Delente, 123 Conn.App. 146 (2010), observed:

“A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties' assets.”  Casey v. Casey, 82 Conn.App. 378, 386-87, 844 A.2d 250 (2004);  Werblood v. Birnbach, 41 Conn.App. 728, 735-36, 678 A.2d 1 (1996).  “[B]ecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.”  Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993).   Furthermore, “the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property.  Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).”  Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004).   Id., at 162.

The court in Krafick v. Krafick, 234 Conn. 783 (1995), held that the purpose of § 46b-81 was “to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute-directly and indirectly, financially and nonfinancially-the fruits of which are distributable at divorce.”  Id. 797-98.  Ranfone v. Ranfone, 103 Conn.App. 243, 250-51 (2007).

The court in Lopiano v. Lopiano, 247 Conn. 356, 363-64 (1998), held:

The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may ‘assign to either the husband or the wife all or any part of the estate of the other ․ 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 ․ shall consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ 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.’  ․ This approach to property division is commonly referred to as an ‘all-property’ equitable distribution scheme.   See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01[2][a][v], p. 37-19.  [Section 46b-81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power.   A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series:  Family Law and Practice with Forms (1991) § 27.1, pp. 398-400.

(Emphasis in original.)  Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).

While the court in Lopiano, supra, would allow the defendant's workers' compensation claim to be distributable marital property, the court declines to award to the plaintiff wife any of the workers' compensation benefits which the defendant husband is likely to receive.   The court recognizes that the future benefits to which he may be entitled are for the loss of function to his heart and for any impairment of his future earning capacity.   The court cannot, in good conscience, allocate those benefits to the wife when it is the husband alone who will bear those losses into the future.

Regarding the awarding of alimony, Connecticut General Statutes § 46b-82 states:

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.

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income ․ Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007), Eliah v. Eliah, 99 Conn.App. 829, 833 (2007).

In a marital dissolution proceeding, the court may base financial awards on earning capacity rather than actual earned income of the parties ․ While there is no fixed standard for the determination of an individual's earning capacity ․ it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health ․ [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable.   Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings.

Watrous v. Watrous, 108 Conn.App. 813, 822 (2008).   Clearly, the husband could continue in his employment or retire, collecting his pension while working a new job.   These factors justify an alimony award to the wife.

ORDERS

The court orders the following:

1.The husband shall pay alimony to the wife in the amount of $150 per week for 3-1/2 years.   Said alimony will terminate upon the earlier of 3-1/2 years or the death of either.   It is modifiable as to amount only.

2. The husband shall quitclaim to the wife the marital home and the wife shall use her best efforts to re-finance the home mortgage in her own name forthwith.   She shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the husband harmless and indemnify him for any such expenses.

3. The husband shall retain his Toyota and Ford vehicles.   The wife shall retain her Pontiac vehicle.

4. The husband shall transfer to the wife 17.5 % of his retirement benefit under the State of Connecticut Pension Plan, together with a pro-rata share of any increases thereon at such time as he begins collecting such pension.   The court finds this to be the marital portion of the husband's pension.   He shall elect the contingent annuitant option of his pension plan and he shall name her as the preretirement and post-retirement survivor beneficiary as to her share of said benefit.   The court will retain continuing jurisdiction over this provision until such time as it is accepted and implemented by the plan administrator.   The division of the benefit shall be done by way of a domestic relations order and the cost shall be shared equally by both parties.   He shall forward to her proof of these elections within seven days of executing said documents.

5. Each shall keep their own bank accounts.

6. Each party will retain the debts listed on their respective financial affidavits.

7. The husband will retain the motor home and the debt associated therewith.

8. The wife will retain the life insurance policies associated with her life and the husband will retain the life insurance policies related to his life.

9. The wife will retain the furniture, appliances and fixtures in the marital residence, the yard tools and the riding lawnmower.

10. The husband will retain the personal property in his possession as well as the air compressor and tools which are powered by the air compressor, the table saw, power drills and tools which were his prior to the marriage.

11. The wife will retain her pension and retirement accounts in their entirety.

12. The husband will retain his workers' compensation claim in its entirety.

13. The wife shall be entitled to 50% of the husband's accumulated sick pay, vacation pay and holiday pay which he shall pay to her within seven days of receipt and he shall transmit to the wife any and all documents received by him or available to him regarding those benefits.

14. The husband shall pay to the wife the sum of $750 within seven days to ensure that she is able to qualify for the mortgage refinance.

15. Each shall pay their own counsel fees.

16. The payments and obligations referenced in these orders are intended to be family support/maintenance payments within the meaning of sections 523(a)(5) and 523(a)(15) of the United States Bankruptcy Code and not dischargeable in bankruptcy.   Each party shall be solely responsible for all debts they have been ordered to pay and they shall hold harmless and indemnify the other thereon.

17. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.