Noel T. Fisher v. Nancy Ann Fisher (2010)

MEMORANDUM OF DECISION

This is an action for dissolution of marriage which was tried on six non-consecutive days beginning on August 24, 2010.   The parties were both represented by experienced attorneys.   The court has carefully considered all of the evidence, statutory criteria, and common law pertaining to dissolution of marriage, alimony, assignment of interest in the marital estate, health insurance, life insurance, debts, taxes and attorneys fees, as well as all other issues about which the court will enter orders.

The plaintiff, Noel T. Fisher, married the defendant, Nancy Ann Fisher, on May 15, 1993.   This is the plaintiff's third marriage, and it is the defendant's second marriage.   The court has jurisdiction over this matter because both parties have lived in Connecticut for at least one year prior to bringing this action.   Neither of the parties has received any state or local financial assistance.   There are no minor children of this marriage.   Based upon the evidence, the court will find that the marriage has broken down irretrievably.

The plaintiff is 63 years of age and is in good health, although he takes medicine for high blood pressure.   The plaintiff, who has a high school education, is an intelligent, articulate man who has spent his entire working life in the construction field.   During the marriage he has spent most of his time running a construction company which catered to the building desires of wealthy New York people with second homes in the Litchfield County area.   His company, known as Noel T. Fisher Construction, Inc., frequently worked for several years for one person before moving on to the next long-term job.   He customarily employed 15-20 workers.   He was successful in this business and was able to earn in excess of $300,000 per year when his company was busy.

At the time of the marriage, the plaintiff owned at least one piece of real property:  a store in Kent which he had bought for $40,000 and renovated for the sale of furniture which he built himself.   There was no credible evidence of the value of this property at the time of the marriage.   In 1998-1999 he sold this property and netted approximately $200,000.   The plaintiff also testified that he owned residential property in Warren which had been the marital home for his previous marriage.   The defendant testified that just after her marriage to the plaintiff he repurchased the property from the plaintiff's ex-wife.   Absent other documentation, it is impossible to determine whether this property was owned by the plaintiff at the time of the marriage or was re-purchased by him soon after the marriage.   In 1998-1999 the plaintiff sold that property and netted approximately $18,000.   He used the proceeds from the two sales to help purchase a vacation home in Charlestown, Rhode Island.

At the time of the marriage, the defendant owned real property at 548 Bantam Road in Litchfield.   The property was in foreclosure.   There was no evidence as to whether there was any equity in the property.   Soon after the marriage, the plaintiff went to the bank and negotiated a new mortgage.   The parties lived in that house until they built a larger home.   During the marriage, the defendant received an inheritance of approximately $80,000 which was contributed to the family finances.

The defendant is 60 years of age and is in good health, although she takes medicine for high blood pressure.   She has a high school education and is intelligent and articulate.   At the time of the marriage she was employed at a local hospital in the laboratory.   She continued to work, at least part-time for about four years.   Then, with the encouragement of the plaintiff, she left her job.   She has not been employed since that time and has no income.   The defendant is capable of being employed.   She is attractive, well-dressed and personable.   As a native of Litchfield, she could undoubtedly find employment in one of the retail businesses in town or in the general area.   It is a reasonable inference from the other facts that she has an gross earning capacity of 30 hours per week at minimum wage of $8.25 per hour.   This translates to a gross weekly earning capacity of $248 per week and a net weekly earning capacity of $164 per week after standard deductions.¹

During the winter of 2007, the plaintiff began discussing with the defendant his frustrations with owning his own large construction company.   His clients were demanding and stress inducing.   The pressure of a large payroll was wearing on him and he was think of making a major change in his business.   In 2008, the recession began and his clients cut back sharply on their expenditures.   In April, he was nearing completion of a large job and began shutting down his business.   He laid off his employees and sold much of his equipment.   He turned over the balance of his next building job with a man named Vikas Kapoor to his son, Tom, to finish.   He decided to retain his excavating equipment so that he could continue to do excavation work on his own without employees.   He continued to work for Mr. Kapoor, who kept him busy with excavation work at the rate of $20,000 per month.   From this sum, the plaintiff paid his own fuel and maintenance.   In early 2010 Mr. Kapoor reduced the plaintiff's gross compensation to $16,000 per month, and to $12,000 sometime thereafter, but he paid $5,500 to repair the plaintiff's equipment.

During the last week of July 2010, Mr. Kapoor owed a large sum of money to the plaintiff's son, Tom, and was putting a lot of pressure on him to continue working.   Tom refused to continue to work without being paid.   Mr. Kapoor called the plaintiff to ask him to take over for Tom. The plaintiff became angry at Mr. Kapoor and hung up the phone.   Subsequently, Mr. Kapoor sent the plaintiff a letter which said that he was fired.   As a result, the plaintiff was unemployed when the trial began.   During the trial, Mr. Kapoor convinced the plaintiff to return to work.   The plaintiff now works for Mr. Kapoor as project manager of sorts.   He does no physical work himself, has no employees of his own, and no longer has the expenses for fuel and maintenance on his excavator.   His pay is $12,000 per month, or $2,769 per week.   After withholding, the plaintiff's net pay is $1,876 per week.²

The defendant has attempted to prove that the plaintiff's exit from his business was part of a scheme of wilful reduction of the plaintiff's earnings through a sham transfer to the plaintiff's son, Tom. This claim has not been proven by a fair preponderance of the evidence.   However, the defendant has proven that the plaintiff act rashly in alienating his employer, Mr. Kapoor, by taking up the cause of his son, thereby leading to his being fired on the eve of the trial of this case.   However, this mistake has now been rectified with the plaintiff's rehiring.   The defendant has argued that the $12,000 per month figure is a sham as well and will be raised back up to the initial figure of $20,000 per week, or more.   Consequently, and in conformity with the plaintiff's earnings history, the defendant argues that the court should assign the plaintiff an earning capacity of $250,000 to $300,000 per year.   This claim is rejected.   The court finds that the plaintiff's testimony concerning the closure of his business was credible.   The same is true concerning his dealings with Mr. Kapoor.   The court will not assign the plaintiff an earning capacity in excess of his current earnings of $12,000 per month.

The parties both attempted to prove that fault for the breakdown of the marriage falls on the other party.   The plaintiff offered evidence that the defendant acted in an irrational manner in dealing with their friends and family so as to destroy any chances of a happy social life.   Therefore, after many years of excusing the defendant's petty social arguments, he realized that he no longer loved his wife and he made a decision to announce to the defendant in May 2008 that he was leaving the house and was considering divorce.   The defendant's testimony was that she thought that the she had a loving marriage up until the time that the plaintiff left.   Even after that time, she held out hope of reconciliation while the parties engaged in mediation during the summer of 2008.   Then, in the fall, the defendant learned that the plaintiff was seeing another woman.   Only then did she accept that the marriage was over.   The evidence convinces me that the parties had a happy and productive marriage for much of the fifteen years that they lived together.   Both parties were credible in setting forth their positions.   I am unable to assign responsibility for the breakdown of the marriage.

The parties own the following four pieces of real property, all acquired during the marriage:

1. A house at 427 Milton Road in Litchfield on 13.91 acres of land.   The parties built this house approximately 12 years ago.   The plaintiff and his construction company did most of the work.   It has an in-ground pool and a barn.   The pictures in the appraisal reports show it to be a lovely home on a lovely site.   There are two appraisal reports in evidence from the same appraiser.   The first report shows a value of $904,000 as of June 1, 2009.   The most current appraisal values this property at $819,000 as of May 21, 2010.   The property is encumbered with a mortgage of $130,000.   The most recent appraisal uses more recent comparable sales, two in April 2010, and one in September 2009.   However, all three of these sales are of inferior properties, all requiring substantial upward adjustments which are somewhat subjective.   The earlier appraisal used three superior property sales, all requiring downward adjustments which are also subjective.   Without hearing live testimony from the appraiser it is difficult to assess his credibility.   Based upon the two reports, I find that the most recent value of $819,000 is the current value of this property.

2. A house at 182 Milton Road in Litchfield.   This is a much smaller house on 2.8 acres of land.   This property also has two appraisal reports from the same appraiser, one as of June 11, 2009, and one as of May 21, 2010.   In a reverse of the situation of the property at 427 Milton Road, the value increased from $259,000 to $271,000.   There is no mortgage.   The appraiser used different comparable sales in each report.   Both reports note that property values in the neighborhood are declining.   It is difficult to understand why the value of this property increased by $12,000 in a declining market.   Having studied both reports, I find that older report is more accurate.   Therefore, the value of this property is found to be $259,000.

3. A summer house at 14 Shore Drive in Charlestown, Rhode Island.   As of June 16, 2009 this property was valued by a local Rhode Island appraiser at $620,000.   The most current appraisal, by the same appraiser, values this property as of May 25, 2010 at $663,000 with no mortgage.   Based upon these reports the value of the property is found to be $663,000.   The reports and photographs show a highly desirable property in a pond-front neighborhood located .25 miles from Charlestown beach.   The latest report notes that “Market prices have stabilized during the past year with an increase in median sales prices within the past 6 months.”   There is no reason to think that this trend has not continued since May 2010 when the report was written.

4. 127.33 acres of raw land in on North Street in Goshen.   The court has an appraisal report of June 11, 2009 showing a value of $902,000.   The most current appraisal values this property as of May 21, 2010 at $767,000 with a mortgage of $440,000.   This amounts to a 15% drop in value in slightly less than one year.   The comparable sales for the more recent appraisal seem to be valid.   Of particular note is a sale on March 24, 2010 of 99.02 acres for $710,000 which seems to have been appropriately adjusted upward.   Based upon the evidence available, the Goshen property is found to be worth $767,000 in the current market.   But, this property appears to have great potential for development.   The photographs show beautiful flat to rolling meadows and a magnificent view to the rear of the property.

The parties own a variety of vehicles:  2007 Lexus with a value of $30,000 and no loan;  Pontiac Vibe with a value of $25,00 and a loan of $20,000;  1954 MG with a value of $30,000 and no loan;  1931 Buick with a value of $18,000 and no loan;  dump truck with a value of $5,000 and no loan;  excavator with a value of $65,000 and a loan of $1,700;  2001 Ford pickup with a value of $4,000 and no loan.

The parties have a number of debts.   The plaintiff shows the following debts on his financial affidavit:  $7,000 to GEMB lending:  $1,700 to Kabelco Excavator:  $7,473 to Discover Card:  $3,038 to Bank of America;  $12,975 to Bank of America;  $4,037 to AARP Visa Card;  $25,876 to Litchfield Tax Collector;  $14,509 to Goshen Tax Collector;  $68,269 to the IRS;  $17,568 to Connecticut DRS;  $4,113 to Laplac Oil;  $1,400 to Rhode Island property tax;  $250 to American Express;  $10,731 to his daughter's education loan;  and $11,344 to Dixon and Brooks for attorneys fees as of the start of the trial.

The defendant shows the following debts on her financial affidavit:  $5,772.79 to the Goshen Tax Collector;  $3,201.62 to Capital One;  $4,237.17 to Banana Republic;  $7,750.25 to Discover Card;  $623.34 to Talbots;  and $38,467.69 to Rome McGuigan, P.C. for attorneys fees as of June 1, 2010.

Both parties claim violations of the automatic orders.   The plaintiff cashed out approximately $30,000 in Certificates of Deposit, withdrew funds from two Edward Jones accounts totaling at least $75,000, cashed in an annuity of approximately $7,967.43, withdrew approximately $14,000 from a money market account, sold substantial equipment from his business including a Bobcat, a trailer and a truck.   The defendant has calculated the total amount of assets sold or taken by the plaintiff after the filing of this case, without permission or court order, to be $224,439.96.   He also allowed health insurance to lapse for both parties, and for insurance on the real property to lapse for a period of time.   In his defense, the plaintiff alleges that the funds withdrawn and the funds received from sales of marital property were used to pay marital bills, including income taxes of at least $75,000.   As to the lapse in health insurance, the plaintiff says that he gave the defendant information on health insurance options but the defendant has never responded.

The plaintiff alleges that the defendant violated the automatic orders by disposing of a kayak, antiques stones, and a Model A Ford, and the removal of $8,000 from a joint bank account.   The defendant claims that the Model A was sold before filing of the action.

The issues in this case involve alimony and the assignment of marital property and debt.   These issues are governed by C.G.S. § 46b-81 and § 46b-82.   These sections set forth the factors to be considered by the court in making decisions on these issues.   I have considered all of these factors and will discuss the ones which are the most significant in this case.

1. Length of the marriage.   The parties have been married for seventeen years.   They separated in 2008, fifteen years after they were married.   This length of time is significant because it allowed both parties to become established in certain patterns of living which are not easily changed.

2. The age and health of the parties.   The plaintiff is 63 and the defendant is 60.   Both are in good health.   Their ages and health are significant because they indicate that they can both be expected to be employed but that both parties are nearing the end of their normal work lives.   Their ages also indicate that they are close to being able to collect social security.

3. Station. The parties have lived a comfortable lifestyle.   They have lived in upscale country homes, they have driven expensive late-model cars, they have taken regular vacations in warm climates during the winter, and they have eaten many of their meals out at local establishments.   Given the assets which have been accumulated during the marriage, there is no reason why either party should be expected to suffer more than a modest diminishment of their station.

4. Occupation, amount and sources of income, vocational skills and employability.   The plaintiff is far ahead of the defendant in all of these factors.   The plaintiff has net income of $1,876 per week based upon his occupation in the construction field, his vocational skills and his employability.   The defendant has no income, no vocational skills and is not readily employable, particularly at age 60 and having been out of the labor market for more than ten years.   The court's finding that she has a net weekly earning capacity of $164 per week is dwarfed by the plaintiff's current earnings.

5. The opportunity of each for future acquisition of capital assets and income.   This factor is to be considered in connection with the assignment of property.   The plaintiff has a much greater opportunity than the defendant, although the plaintiff's age is a limiting factor.

6. The contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.   This factor is also considered in connection with the assignment of property.   It heavily favors the plaintiff.   The plaintiff earned all of the money that was used to purchase the real estate assets of the parties totaling nearly $1.9 million dollars.   Although the plaintiff came into the marriage with some property, it is offset by the defendant's inheritance which she contributed to the parties' general funds.   In light of this offset, the court is considering all of the current marital assets to have been accumulated during the marriage.   This was due to the hard work and skill of the plaintiff.   There was no credible evidence that the defendant contributed to the acquisition and preservation of these assets.   There is insufficient evidence to determine the extent to which the assets may have appreciated during the marriage.

The proposed orders of the parties with respect to a property division are as follows.   The plaintiff proposes that the defendant receive the smaller house plus 40% of the net proceeds (or a minimum of $200,000) of the sale of the Goshen land within 3 years.   In essence, under the plaintiff's proposal, the defendant would receive roughly 25% of the current value of the real estate assets.   The defendant's proposed orders are that the defendant will receive the smaller house, the Rhode Island property and one-half of net proceeds from the sale of the larger house.   The defendant proposes that she live in this house until it is sold.   In essence, under this proposal, the defendant would receive roughly 65% of the current value of the real estate assets.

The proposals for property division are both unrealistic, and seem to be the reason that this case has dragged on for so long and has been so acrimonious and expensive for both parties.   Both parties would have saved themselves time, expense and emotional turmoil if they had been more flexible.   The fact is that the real estate assets of the marriage were all accumulated during the marriage.   Although virtually all of the funds used to purchase these properties were earned by the plaintiff, it was a mutual decision that the defendant not be employed.   It is unclear why the parties each think that a vastly disproportionate division of the property is appropriate.

The alimony proposals of the parties are as follows.   The defendant asks that she receive 50% of the gross income of the plaintiff.   At the plaintiff's current gross of $2,769 per week, this amounts to an alimony award of $1,395 per week.   The defendant also proposes that the plaintiff provide and pay for the defendant's health insurance for a period of three years.   The plaintiff proposes that he pay the defendant 50% of his net income up to $1,000 per month for a period of three years.   This amounts to an alimony award of $232.58 per week.   Neither proposal is fair.

The violations of the automatic orders are a challenge.   On the one hand, the amounts removed from the plaintiff's IRA and the sales of the CDs are substantial.   The court does not want to seem to be approving this conduct.   Approval should have been obtained before the sales were made or funds removed.   On the other hand, some of these actions took place when the parties were communicating with each other in mediation, and I find that the funds were used for legitimate purposes, primarily the payment of joint tax liabilities.   It may be stretching the words to find that the funds were used primarily for “customary and usual household expenses,” but I do not find that the plaintiff misused the funds for improper purposes.   For this reason, my orders will not include a financial sanction of the plaintiff.

My goal in creating the orders in this case is to eliminate as many continuing entanglements between the parties as possible.   For this reason, the court rejects the proposals of both parties which would require that the parties to sell properties and share in the proceeds.   These arrangements are fraught with potential future conflict.   Also, the proposals to have the plaintiff pay a percentage of his gross or net income as alimony are rejected in favor of a fixed amount.   It is clear that this couple is incapable of working out their problems without resort to the court.   My orders are intended to reduce that potential.

The court orders the following:

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

2. Within 30 days from the date of this judgment, the plaintiff shall quit-claim to the defendant any and all interest he has in the property at 182 Milton Road, Litchfield, Connecticut and the property at 14 Shore Drive, Charlestown, Rhode Island.   With respect to both properties, the defendant shall hold the plaintiff harmless and indemnify him from any and all expenses, costs, mortgages, taxes, and insurance associated with these properties.   The defendant shall be free to sell one or both properties and shall be solely responsible for any capital gains taxes.   The Rhode Island property appears extremely saleable.   If the plaintiff chooses, she could have this property sold by spring, thereby realizing at least $500,000 in net cash after paying closing costs, taxes and her attorneys fees from this action.

3. Within 30 days from the date of this judgment, the defendant shall quit-claim to the plaintiff any and all interest she has in the property at 427 Milton Road, Litchfield, Connecticut and the property on North Street, Goshen, Connecticut.   The defendant shall vacate the 427 Milton Road property at that time.   With respect to both properties, the plaintiff shall hold the defendant harmless and indemnify her from any and all expenses, costs, mortgages, taxes, and insurance associated with these properties.   The plaintiff shall be free to sell one or both properties and shall be solely responsible for any capital gains taxes.   The Goshen property is suffering from a stagnant development market, but appears to have great potential in the long run.   The plaintiff has the skills to exploit this opportunity.

4. The defendant will retain the contents of the property at 183 Milton Road and the Rhode Island property as well as her personal possessions at 427 Milton Road. With the exception of the defendant's personal possessions, the plaintiff will retain the balance of the contents of 427 Milton Road, as well as all of his equipment, tools and other personal property on the property.   If the parties have a dispute about this issue, they shall be required to submit this dispute to private mediation before resorting to court action.

5. The defendant shall retain the 2007 Lexus free and clear of any claims of the plaintiff.

6. The plaintiff shall retain all of the other motor vehicles, free and clear of any claims of the defendant.   The plaintiff shall be responsible for paying any loans on those vehicles, and shall indemnify and hold the defendant harmless from liability on those loans.

7. The plaintiff shall pay periodic alimony to the defendant in the amount of $600 per week for a period of six years.   Alimony is nonmodifiable as to term but not amount.   Alimony shall terminate upon the death of either party or the defendant's remarriage.   Alimony may be modified or terminated, as the circumstances warrant, should the defendant cohabit with another in accordance with C.G.S. § 46b-86(b).

8. The defendant shall be responsible for payment of the Capital One, Banana Republic (Visa) and Talbots debts, and shall indemnify and hold the plaintiff harmless for liability on these debts.   The plaintiff shall be responsible for payment of the Discover Card, GEMB lending, Kabelco Excavator, Bank of America, AARP Visa, Laplac Oil, Connecticut DRS and the IRS. He shall indemnify and hold the defendant harmless from liability on these debts.

9. The parties shall be responsible for obtaining and paying for their own health insurance.

10. The parties shall be responsible for paying their own attorneys fees.

11. The defendant shall retain her Litchfield Bancorp bank accounts.   The plaintiff shall retain his First National Bank account and his Edward Jones IRA.

12. The plaintiff shall be responsible for the tax consequences of all early withdrawals from his IRA. He shall indemnify and hold the defendant harmless from liability for those withdrawals.

BY ORDER OF THE COURT,

John W. Pickard

FOOTNOTES

FN1. Deductions are:  $65 for Federal Income tax;  $0 for Connecticut Income tax;  $15 for Social Security;  and $4 for Medicare..  FN1. Deductions are:  $65 for Federal Income tax;  $0 for Connecticut Income tax;  $15 for Social Security;  and $4 for Medicare.

FN2. The deductions are:  $591 for Federal Income Tax;  $135 for Connecticut Income tax;  $127 for Social Security;  $40 for Medicare..  FN2. The deductions are:  $591 for Federal Income Tax;  $135 for Connecticut Income tax;  $127 for Social Security;  $40 for Medicare.

Pickard, John W., J.