Tamarah Marino v. Frank C. Marino (2010)

CORRECTED AND AMENDED MEMORANDUM OF DECISION

By decision dated September 16, 2010, this court rendered a decision granting the dissolution of marriage of the parties and entering various orders concerning custody, alimony, child support and property division.   By motion dated October 7, 2010, the defendant filed a motion to reargue and reconsider requesting correction of several scrivener errors, and requesting other orders.   By decision dated October 22, 2010, this court ordered that the dissolution shall remain effective, however, the motion was granted, and the relief requested was granted, in part.   This corrected and amended decision is issued consistent and simultaneously therewith.   The corrected and amended decision is as follows.

The plaintiff, who is a resident of Kensington, Connecticut, initiated this action for dissolution of marriage with a complaint that was returned to the court on August 25, 2009.   At the time, the defendant also was a resident of Kensington, Connecticut.

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

A partially contested trial was held before the undersigned on August 24 and 26, 2010.   Both parties were represented by counsel, and counsel filed proposed orders in support of their respective positions.   Both parties appeared and testified at trial.   The court also heard testimony from Doug Gordon, the family's financial advisor;  and from Jessi Marino, the Marinos' older daughter, and reviewed numerous exhibits.   Final arguments were heard on September 14, 2010.

The court has fully considered the criteria of General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62 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, Tamarah Marino, and the defendant, Frank C. Marino, were married on November 21, 1982, in Ivoryton, 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 are two children of the marriage:  Jessi Marino, now age 20 and Julie Ann Marino, now age 15.   Julie's date of birth is November 13, 1994.

5. Neither party has received financial assistance from any state or local agency, nor have the children.

6. During the course of the litigation, the defendant lost his job when his company downsized.   He found a new job and has moved to Florida to facilitate his new employer.   The plaintiff asks for joint custody of Julie in the divorce with primary residence with the mother and reasonable visitation by the father as may be mutually agreed, but with final decision making authority over all matters, including visitation, with the mother.   The defendant has no objection.   Particularly in light of the fact of defendant's relocation, and the fact that Julie will soon turn 16, the court finds the plaintiff's proposal to be in the child's best interest and will incorporate the proposal into the judgment.

7. The plaintiff is 32 years old and in good health.   She has a high school education and was enrolled in college studying physical education when she was younger, but quit after she married the defendant.   During the marriage, she was primarily responsible for raising the children and keeping the home, however, she also operated or helped operate the family side business, a karate school, at night and on the weekends.   In the recent past, the school has generated profits of between approximately $15,000.00 to $33,000.00 per year.   But, in this current recession, student enrollment has dropped dramatically and the business has ceased.   In fact, the family is in litigation with their landlord over a breach of the lease.   The landlord has applied for a prejudgment lien in the amount of $33,000.00 in that matter.   Currently, the plaintiff works as a school bus driver for a bus company during the day, and at night and weekends she works as a karate instructor for the Southington YMCA. She earns approximately $28,000 per year gross and is looking for a better paying job.

8. The defendant is 60 years old and he has a heart condition and other ailments.   He is a military veteran and has a bachelors degree in marketing.   He works as a marketing and business development executive for an adhesive and sealant company.   He earns approximately $143,000.00 per year gross and has a potential to earn a 20 per cent bonus, but it is not guaranteed.   He plans on working until age 70.   He is also the sole proprietor of the family karate school:  Butch Marino's Shorin-Ryu Karate Institutes formerly of New Britain, CT.

9. The court accepts the income evaluation submitted by the defendant on the Child Support Guideline Worksheet dated August 24, 2010 showing a net weekly income of $1,733 for the father and net weekly income of $529 for the mother resulting in the father being responsible for a presumptive child support payment of $265 per week and responsibility for 53 per cent of unreimbursed medical expenses and childcare.   The defendant has no objection to payments per the guidelines.

10. Shortly after the marriage, the parties built a home in Berlin, CT using approximately $31,000.00 from the proceeds of the sale of defendant's condominium.   Subsequently, they upgraded to the present home in Kensington, CT. The home is now on the market for $575,000.00.   Each side blames the other for failing to drop the price to facilitate a quick sale.   Both are equally at fault for the lack of communication.   There is a mortgage on the home with a balance of $235,032.16.   The parties also own a time share in Aruba valued at approximately $10,000.00.   The defendant leases a condominium while living in Florida.

11. The plaintiff is the beneficiary on three karate school retirement plans totaling approximately $54,000.00.   The funds were contributed from joint income during the marriage.   The defendant has two retirement funds totaling approximately $787,000.00 from past employment, plus he has started a retirement fund at his new place of employment and that account is worth approximately $11,000.00.   Most of the money for the defendant's retirement accounts came from funds earned during the marriage, but the defendant contributed approximately $115,000.00 from 9 years of earnings before the marriage.   Also, the parties jointly own a municipal income account worth approximately $131,000.00 earmarked for the children's education.

12. The plaintiff owns a 2009 Jeep Cherokee valued at $25,000.00.   There is a loan against it with a balance of approximately $27,366.   The defendant leases a 2010 Cadillac CTS.

13. The plaintiff lists a life insurance policy on her financial affidavit with a cash value of approximately $27,700.00.   The defendant lists three life insurance policies on his financial affidavit with cash values of approximately $75,900.00.

14. The plaintiff has a personal checking account and a business checking account for the karate school, both at Webster Bank and both worth nothing.   The defendant has two bank accounts at Bank of America worth $58,000.00.   Some withdrawals, deposits or changes to some accounts occurred during the divorce proceedings for legitimate reasons.

15. The plaintiff claims total liabilities of approximately $103,493.00 consisting mostly of credit card and mortgage debts and potential liabilities from the breach of lease and other debts at the karate school.   There is also a debt of $2,032.01 due when the plaintiff cancelled a karate school related lease on a motor vehicle that she drove:  a Dodge Nitro.   The plaintiff returned that car and purchased the Jeep during the litigation for her transportation.   The plaintiff claims weekly expenses of approximately $1,412.00.

16. The defendant claims total liabilities of $55,000.00 consisting of the potential liability on the same breach of lease for the karate school.   The defendant claims weekly expenses of approximately $2,022.00.

17. Plaintiff contends that the defendant wrongfully withdrew $95,000 from the joint bank account during the litigation.   He was ordered to give the plaintiff $20,000.00 back, but he was to receive a credit in that same amount in his favor in any property distribution order in this case.   The defendant contends that he moved the money because plaintiff wildly spent over $100,000.00 during a period of a few months in 2009 on frivolous items and unexplained cash withdrawals.   The plaintiff did display a startling lack of skill in matters of money management, but there was no conclusive proof of deliberate violation of any standing orders designed to prevent asset drain during litigation.

18. The parties have some outstanding requests concerning other personal property.

19. The plaintiff blames the defendant for the breakup of the marriage.   While the defendant denies that he was the cause, the court finds that during the course of the marriage, the defendant was a dominant and domineering figure.   He structured the relationship such that the plaintiff relinquished her ambitions and worked in his karate school.   Particularly after he began having heart problems, the carrying out of defendant's orders for the management and operation of the karate school became the duty of the plaintiff.   In his home life, he was likewise domineering to the point of cruelty.   He berated and belittled his wife into submission and treated his children the same.   Eventually, the emotional abuse became physical involving grabbing and pulling and hitting and throwing of objects.   The police and Department of Children and Families responded, but the investigation results were inconclusive.   The plaintiff filed for, and was granted, a restraining order on October 26, 2009, but that order was dismissed after an agreement of the parties was accepted by the court, which included the requirement that the defendant leave the home and not initiate direct contact with the family.   The plaintiff also accused the defendant of having an affair, but that was not substantiated.   The defendant was an excellent provider for his family, and he built a karate school that enjoyed an excellent reputation.   He no doubt wanted the best for his family and wanted to see them achieve the same success as he was capable of accomplishing and was frustrated by the shortcomings he perceived.   However, he neglected his marriage and family building skills and there was no justification or mitigating circumstance in evidence justifying the level of his impatience and intemperate responses.   The defendant was responsible for the breakup of the marriage.

20. The parties agree that the court may retain continuing jurisdiction regarding the post-majority educational support pursuant to General Statutes § 46b-56c.

21. The defendant does not request restoration of her former name.

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, 882 A.2d 731, cert. denied, 276 Conn. 919, 883 A.2d 88 (2005).

Alimony

The purpose of alimony is to provide continuing support.  Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023 (1999).  “There is no absolute right to alimony ․ awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court.”  (Citations omitted.)  Weinstein v. Weinstein, 18 Conn.App. 622, 631, 561 A.2d 443 (1989).  “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall ․ consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ the age, health, station, occupation, amount and source of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make [concerning property division], and, in the case of a parent to whom the custody of the minor children has been awarded, the desirability of such parent's securing employment.”  General Statutes § 46b-82.   The court must base its alimony order on the parties' net income.  Ludgin v. McGowan, 64 Conn.App. 333, 780 A.2d 198 (2001).

Custody

“Under Connecticut law, the trial court's discretion as to custody and visitation is not limited [to adopting the specific custodial arrangement sought by one of the parties].   It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement ․ Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child.”  (Citations omitted.)  Fiddleman v. Redman, 37 Conn.App. 397, 403-04, 636 A.2d 234 (1993).

In any custody order, the court is bound by what is in the best interests of the child.  General Statutes § 46b-56(b);  Simons v. Simons, 172 Conn. 341, 374 A.2d 1040 (1977);  Krasnow v. Krasnow, 140 Conn. 234, 260, 99 A.2d 104 (1953).   The court must also give consideration to the preference of a child or children if that child is of sufficient age to be capable of forming an intelligent decision.   The rights, wishes and desires of the parents are also a factor to be taken into account.   Both considerations, however, must be subordinated to the best interest of the child.  Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980).

Child Support

The child support and arrearage guidelines are considered in all determinations of child support amounts and payments on arrearages and past due support within the state.  General Statutes § 46b-215b.   The child support guidelines are considered in addition to and not in lieu of the criteria established in General Statutes §§ 46b-84 and 46b-86.   There is a rebuttable presumption that the child support amount resulting from the guidelines is the child support amount to be ordered.  Castro v. Castro, 31 Conn.App. 761, 766, 627 A.2d 452 (1993).   Any deviation from the guidelines must be pursuant to one or more specific deviation criteria.  Baker v. Baker, 47 Conn.App. 672, 677, 707 A.2d 300 (1998).   The court must make a specific finding on the record that the application of the guidelines would be inequitable or inappropriate according to the guideline's deviation criteria.   Mullin v. Mullin, 28 Conn.App. 632, 612 A.2d 796 (1992).   Expenses for special needs are grounds for deviation from the presumptive support amounts.   Guidelines, Sec. 46b-216a-3(b)(2)(C).

Property Division

The purpose of property division is to equitably distribute the marital property to each spouse.  Smith v. Smith, supra, 249 Conn. 275.  “In fixing the nature and value of the property, if any, to be assigned, the court ․ shall consider the length of the marriage, the causes for the ․ dissolution ․ the age, health, status, 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.”  General Statutes § 46b-81.

“In assessing the value of ․ property ․ the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation.”  (Citations omitted.)  Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983).   The court in Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (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, 928 A.2d 375 (2007).

“[Conn. Gen.Stat.] § 46b-81 [assignment of property and transfer of title] applies only to presently existing property interests, not “mere expectancies.”  Bartlett v. Bartlett, 220 Conn. 372, 380-81, 599 A.2d 14 (1991).   An expectancy is only “the bare hope of succession to the property of another-such as may be entertained by an heir apparent.”  Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978).  “The term expectancy describes the interest of a person who merely foresees that he might receive a future beneficence ․ [T]he defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence.”  (Citations omitted;  internal quotation marks omitted;  emphasis in original.)  Krafick v. Krafick, 234 Conn. 783, 797, 663 A.2d 363 (1995).  “A court may accept or reject such evaluations in whole or in part and ascribe its own valuations to real estate ․ The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder.”  (Citations omitted.)  Martin v. Martin, 90 Conn.App. 145, 150 n.4, 913 A.2d 451 (2007).

“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.”  (Citations omitted.)   Elia v. Elia, 99 Conn.App. 829, 833, 916 A.2d 845 (2007).  “It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations ․” (Citations omitted;  internal quotation marks omitted.)  Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007).   Moreover, “lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate.”  (Citations omitted;  internal quotation marks omitted.)  Milazzo-Panico v. Panico, 103 Conn.App. 464, 468, 929 A.2d 351 (2007).

Attorneys Fees

General Statutes § 46b-62 provides, “In any proceeding seeking relief under the provisions of this chapter ․ the court may order either spouse ․ to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.”

“[A] court should have the discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct ․” Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007).

ORDERS

The court orders the following:

1. The marriage is dissolved effective on the filing of the original decision.

2. Alimony. The defendant shall pay periodic alimony to the plaintiff in the amount of $500.00 per week commencing November 5, 2010, which alimony shall terminate on the death of either party, plaintiff's remarriage, or on November 5, 2020, whichever occurs first, and shall be subject to modification, alteration, suspension or termination pursuant to General Statutes § 46b-86.   Defendant may pay each month in advance, commencing November 5, 2010, by electronic transfer, subject to contingent wage execution.   Until that time, the amount being paid by the defendant pendent lite shall remain in effect (12/10/09 Agreement).   The defendant is awarded no alimony.

3. Custody. The parties shall share joint custody of the minor child, Julie, with primary residence with the mother and reasonable visitation by the father as may be mutually agreed, but with final decision making authority over all matters, including visitation, with the mother.

4. Child support.   The defendant shall pay to the plaintiff as child support the sum of $265.00 per week commencing November 5, 2010.   Until that time, the amount being paid pendent lite shall remain in effect (12/10/09 Agreement).   Defendant may pay each month in advance, commencing November 5, 2010, by electronic transfer, subject to contingent wage execution.

5. Educational expenses.   The parties shall continue to maintain the joint account earmarked as the education fund for the benefit of the children's education.   When the children finish their college education, any funds remaining in the account shall be split equally between them.   Mr. Douglas Gordon may remain as administrator of the account.   The court shall retain jurisdiction over this case for purposes of entertaining an order regarding payment of higher education expenses for the children pursuant to the provisions of General Statutes § 46b-56c, and concerning final distribution of any unused funds.

6. Medical. The defendant shall keep his unmarried children covered on his present medical insurance policy, or the equivalent, as provided by his employer, to the extent that it is permitted under the terms of his plan.   The parties shall each be responsible for all unreimbursed medical expenses for such unmarried children while the children are eligible to be covered by defendant's plan, in proportion as provided by the child support guidelines.   The provisions of General Statutes § 46b-84(e) shall apply.   The defendant shall make available to the plaintiff COBRA benefits, but plaintiff shall be responsible for paying for the costs if she utilizes those benefits.   Otherwise, she should obtain her own medical insurance.

7. Attorneys Fees. Each party shall be responsible for their own attorneys fees, costs and expenses of litigation.

8. Property. The family residence in Kensington, CT is awarded to the plaintiff subject to all liens and mortgages and other encumbrances.   The defendant shall give a quit claim deed to the plaintiff within 30 days and the plaintiff shall take all necessary steps to extinguish the defendant's liability on the note and mortgage within 60 days of receipt of the quit claim deed.   The time share in Aruba is awarded to the defendant.   The plaintiff shall transfer her interest in the time share to the defendant within 30 days.   The Jeep Cherokee is awarded to the plaintiff, free and clear of any claims or encumbrances by the defendant.   The rights to the Cadillac CTS are awarded to the defendant, free and clear of any claims or encumbrances by the plaintiff.   The parties shall promptly exchange any papers necessary to effectuate the transfers and hold each other harmless.   The parties' pension and retirement accounts shall be divided through a Qualified Domestic Relations Order.   The assets shall be divided 40 per cent to the plaintiff and 60 per cent to the defendant.   The deviation from equality is due to the defendant's pre-marital contribution of 9 years to the retirement assets as well as the disparity in their ages.   The parties' retirement assets are valued at approximately $852,000.00.   Any division shall be subject to market gains and losses with each side bearing a 40/60 proportional share of such gain or losses.   The legal costs for preparing the QDRO shall likewise be paid 40 per cent by the plaintiff and 60 per cent by the defendant.   The court shall retain jurisdiction as to any issues arising therefrom.   The plaintiff is awarded the bank accounts and life insurance listed on her financial affidavit free and clear of any claims of the defendant.   The defendant is awarded the life insurance listed on his financial affidavit free and clear of any claims of the plaintiff.   That award will satisfy the $20,000.00 credit due him in the property division.   Defendant shall give the plaintiff $29,000.00 from his Bank of America accounts listed on his financial affidavit within 30 days.   The defendant is awarded the Butch Marino's Shorin-Ryn Karate Institutes free and clear of any claims of the plaintiff.   The plaintiff shall share the books and records of the school for this year with the defendant.   The parties shall equally share in the payment of any income tax liability arising from the school operations this year for the period up to the date of dissolution of marriage.

9. Mortgages, Loans, Credit Card and Other Liabilities.   The plaintiff shall be responsible for the mortgage, taxes, and insurance on the Kensington real estate, all bills for operation of the home, and for all other loans and credit card debts and expenses on her financial affidavit, holding the defendant harmless with respect to those liabilities.   Likewise, the defendant shall be responsible for his own expenses and the loans and credit card debts on his financial affidavit, holding the plaintiff harmless with respect to those liabilities.   However, with regard to the karate school business debts, since the parties shared equally in the profits of the karate school business during its successful years, they shall share equal responsibility for any expenses and liabilities arising from the operation of that business up to the date of judgment, including the debt on the return of the Dodge Nitro, unpaid bills, and any liability for the breach of the real estate lease.   With regard to the mortgage interest payments and real estate taxes paid by the defendant pendent lite, the defendant shall be allowed to take the tax deductions for the payments he made this year.

10. Life Insurance.   For so long as the defendant has an alimony payment obligation, the defendant shall maintain a policy of term life insurance in the total amount of $150,000 for the benefit of the plaintiff, provided such insurance is available and reasonably affordable.

11. Personal Property.   The plaintiff shall keep all household furniture including the tractor with all attachments, three computers, five television sets and patio furniture.   The defendant may keep his bows (oriental weapons), his Hall of Fame awards from the Karate School and all his shot records, a portrait of his father, two large oriental pictures from the family room, as well as the American Flag that was on his father's coffin.   To the extent that these items can be located, they shall be sent to the defendant within 60 days if not already provided.   The defendant may have copies of home movies and photos of his children.   He shall be responsible for pre-paying for the copying costs.   They shall be sent to him within 60 days of receipt of payment by the plaintiff.

12. The parties shall each take one child for a tax exemption every year until only one child qualifies as an exemption.   Thereafter, the parties shall alternate taking the remaining exemption, with the plaintiff taking the first year.

13. The clerk shall prepare the judgment file.   All counsel shall sign the judgment file.

14. Dissolution shall enter.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.