Elvira Anderson v. Wayne Anderson (2010)

CORRECTED MEMORANDUM OF DECISION

This dissolution of marriage action between the plaintiff, Elvira Anderson, and the defendant, Wayne Anderson, came before the court by a writ, summons and complaint with a return date of April 21, 2009.   The matter was tried, over two days, on March 26, 2010 and April 29, 2010.   The plaintiff was represented by attorney Lisa Faccadio and the defendant was represented by attorney Robert Fried.

Both parties submitted claims for relief.   Regarding financial support, the plaintiff seeks one dollar per year in alimony, sole ownership of residential real estate in Ocala, Florida, maintenance of medical insurance coverage for three years, maintenance of an existing life insurance policy, 50 percent of the defendant's pension from the city of Hartford, specific personal property, and $5,000 in attorneys fees.

By way of financial orders, the defendant proposes the following:  that he pay no alimony, that the parties divide equally their marital assets including the net proceeds from the sale of the marital residence in Ocala, Florida, after adjustments for the defendant's costs, and an equalization of the marital portion of their retirement assets.

In rendering this decision and making the ensuing orders, the court has carefully considered the statutory criteria in General Statues § 46b-66a as to the conveyance of real property, General Statutes §§ 46b-81 and 46b-82, regarding the assignment of the marital estate, and alimony, respectively, General Statutes § 46b-62 regarding attorneys fees, the case law as it has developed regarding these matters and other relevant federal and state laws regarding the issues that confront the court.   The court has considered the parties' arguments, proposed findings of fact and proposed orders.   Additionally, the court had the opportunity to observe the demeanor of the plaintiff, who was the only witness at the time of trial.   There were numerous full exhibits, each of which was examined by the court.

I. FINDINGS OF FACT

A. Jurisdictional Findings

The plaintiff wife and the defendant husband were married on September 12, 1992, in Cromwell, Connecticut.   The plaintiff has resided continuously in Connecticut for at least twelve months preceding the date of filing the complaint.   There are no children issue of the marriage.   The court has jurisdiction over the marriage and the parties.   The parties have not received public assistance.

For the reasons discussed hereinafter, the court finds that the marriage between the parties has broken down irretrievably and there is no hope of reconciliation.

B. Parties

The plaintiff wife, having been born on March 6, 1950, is presently sixty years old.   She has been living with, and is being partially supported by a daughter and son-in-law since July of 2008 in Middletown, Connecticut.   The plaintiff was employed with Aetna for twenty-seven years.   She retired in April of 1995 as a manager earning approximately $45,000.   She receives an Aetna pension of $642.49 per month.   From time to time, the plaintiff has resumed employment performing data entry and customer service work:  earning a maximum of $22,000 when she was able to work on a full-time basis.   She was last employed in December of 2008 and collected unemployment benefits of $182 per week through February of 2010.   At the time of trial she had no job prospects or income beyond her Aetna pension.   The court finds that her net income is $148 per week.

The plaintiff's health is compromised.   In October of 1993 and August of 1995, she was treated in Connecticut for breast cancer.   She underwent reconstructive surgery in 1999 and suffers from bronchial asthma and anemia as well as a skin disorder which is highly sensitive to the constant sunshine, for which the state of Florida is famous.   Nevertheless, she plans to return to Florida and permanently reside in the marital home.

The sixty-three-year-old defendant husband was born on August 27, 1946.   He was employed as a police officer with the city of Hartford, Connecticut, for twenty-four years, retiring two years after the parties were married.   The defendant receives a city of Hartford (MERF) retirement benefit of $5,080 per month.   He contributes $1,278 per month for the parties' medical and dental coverage.   Following retirement, he moved to Florida and worked for approximately four years as a security guard earning a maximum of $35,000 per year.   He is in good health.   The defendant is an inmate at the Hamilton Annex of the Florida Department of Corrections having been sentenced on February 9, 2010 to a term of fifteen years for (attempted) sexual battery by an adult of a victim less than twelve years old.¹  He has a release date of February 20, 2024 when he will be seventy-eight years old.²  While he would be eligible for Social Security benefits in the amount of $668 per month, the payments have been suspended as a result of his incarceration for a felony.   The court finds that the defendant has a net weekly income of $823.

Throughout the marriage, both parties made contributions to the acquisition, maintenance, preservation and improvement of the marital assets, including real estate.   While the defendant's economic contributions from employment and retirement were greater than that of his wife throughout the seventeen-year marriage, the plaintiff, nevertheless, made financial contributions from her employment and retirement earnings.

C. Marital Property

The current marital estate has an approximate gross value of $55,000.   As to the marital home at 4545 SW 103rd St. Ocala, Florida, the court finds its fair market value to be $134,000.³  With an outstanding mortgage of $93,000, the property's net equity is $41,000.

D. Additional Assets and Liabilities

The plaintiff owns and operates a 2004 Toyota with a value of $6,700, personal property and household furnishings the value of $1,500 and has a Bank of America checking account with the balance $5,300.   She has a CRC fixed annuity with The Hartford valued at $25,353.   The court finds that, with the exception of the generator, the items set forth in plaintiff's exhibit # 10 are the personal property of the plaintiff.

The defendant's only asset other than his city of Hartford Police Department pension, which is in pay status, and the marital residence, is a Sun Trust checking account with a value of $850.

The parties have significant short-term liabilities in their individual names.   The plaintiff has unsecured loans totaling $3,158, medical bills totaling $570, and owes American Express $5,245.   The defendant has the following obligations:  to Discover in the amount of $200, to Chase in the amount of $6,000, to AAA Financial in the amount of $4,500, to Procter and Fletcher in the amount of $5,000, to HPD Credit (car loan) in the amount of $9,000 and attorneys fees of $10,000.

E. Causes for the Dissolution of Marriage

Following his retirement, the defendant moved to Florida in September of 1994 and the parties purchased their first property for $80,000.   The plaintiff followed him in 1995.   From time to time she returned to Connecticut to receive medical care and spend time with her daughter's family.   She lived in Florida until February of 2005.

In 1997, the defendant had an affair causing the plaintiff to move out of the marital home for approximately one year.   The plaintiff returned to Florida in October of 1998 and the parties resumed marital relations.   In August of 2004, the parties purchased their second home for $150,000, subject to a mortgage of $92,000.⁴  In November of 2004, the plaintiff was diagnosed with a skin rash that was highly irritated by Florida's climate.   She traveled to Connecticut intending to return to Florida after her medical condition was resolved.   Although the parties often lived apart due to the plaintiff's medical issues and family interests, they communicated daily and the plaintiff, having forgiven her husband for his infidelity, believed she had a good marriage.

The plaintiff's renewed faith in and commitment to her husband was irrevocably severed following his arrest and conviction for the attempted sexual battery of a child in March 2009 and is the reason she initiated this action.   The court finds that the defendant's arrest, conviction, and imprisonment were the causes of the dissolution of the marriage.   He is solely at fault for the dissolution of the marriage.

II. ORDERS

Based on the foregoing finding of facts, the court orders the following:

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

2. Medical Insurance:  The parties shall be responsible for their own health insurance.

3. Pension:  The plaintiff shall receive 59 percent of the gross amount of the defendant's city of Hartford pension plus any applicable future cost-of-living adjustments (COLAs) and other enhancements provided under the terms of the plan.   The division of retirement assets shall be accomplished by a qualified domestic relations order (QDRO) as necessary.   The parties shall share equally the costs associated with effectuating said transfer.   The plaintiff shall be the surviving spouse.   The court shall maintain continuing jurisdiction over this order.

4. Periodic alimony:  The defendant shall pay one dollar per year alimony to the plaintiff.   Said alimony will be modifiable only to the extent necessary to ensure that the defendant satisfies all of his obligations pursuant to paragraph three.   Alimony shall continue until the death of either party.

5. Property Division.

a. The residence at 4545 SW 103rd St. Ocala, Florida:

The defendant shall transfer to the plaintiff all his right, title and interest in the home located at 4545 SW 103rd St. Ocala, Florida.   The plaintiff shall have exclusive possession of the property and shall be responsible for the mortgages, credit lines, taxes, insurance, utilities, maintenance and upkeep and she shall hold the defendant harmless for the same.

b. The plaintiff shall retain possession and ownership of the automobile currently in her possession, free from any claim of the defendant and shall be solely responsible for all expenses and insurances relating thereto and hold the defendant harmless and indemnify the defendant for the same.

c. The parties shall retain their respective personal property and shall divide equally any jointly owned personal property.   In the event the parties cannot agree upon the distribution of their household contents, they shall submit the issue to mediation.   Each party shall be responsible for 50 percent of the fees of the mediator.

d. The defendant shall retain all right, title and interest in the Sun Trust account free of any direct claim by the plaintiff.

6. Liabilities:  Each party shall be responsible for the remaining liabilities listed on their respective financial affidavits, subject to paragraph seven, and will indemnify and hold the other harmless.

7. Tax Indemnification.   Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that parties' income or deductions.

8. Counsel Fees:  The parties shall each be responsible for their own respective counsel fees incurred as a result of this matter.

9. Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within four days of presentment.   These orders are effective immediately.

THE COURT

HARRY E. CALMAR, JUDGE

FOOTNOTES

FN1. The incident occurred on December 25, 2008..  FN1. The incident occurred on December 25, 2008.

FN2. The release date is subject to change pending gain time award, gain time forfeiture, or review..  FN2. The release date is subject to change pending gain time award, gain time forfeiture, or review.

FN3. Pursuant to an expired listing agreement the parties agreed to sell the property in November of 2009 for $143,800.   However, on their financial affidavits the plaintiff and the defendant list the property value at $134,000 and $125,000 respectively..  FN3. Pursuant to an expired listing agreement the parties agreed to sell the property in November of 2009 for $143,800.   However, on their financial affidavits the plaintiff and the defendant list the property value at $134,000 and $125,000 respectively.

FN4. The first home purchased in Florida had returned an investment of $78,000..  FN4. The first home purchased in Florida had returned an investment of $78,000.

Calmar, Harry E., J.