Joan Pincince v. Robert Pincince (2010)

MEMORARDUM OF DECISION

This matter was tried before the court on September 29, 2010, and October 1, 2010.   Exhibits were introduced.   The court has considered all of the evidence presented to it and carefully considered the respective criteria for orders of custody, child support, alimony, health insurance, property settlement, division of debt, and award of counsel fees.   The court makes the following findings of facts and orders.

The parties were married on March 14, 1981, in East Windsor, Connecticut.   The court finds that it has jurisdiction over the marriage.   All statutory stays have expired.   Both parties have lived in the State of Connecticut for more than one year prior to bringing this action.   There are four children born to the parties since the date of the marriage;  only one, Robert Pincince, III, is a minor, date of birth, November 28, 1995.   No other children have been born to the wife since the date of the marriage.   The parties have not received state or municipal assistance.   The court finds that the marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.

The plaintiff is forty-eight (48) years old and in good health.   She has an eleventh grade education and no vocational skills.   The plaintiff was a stay at home mother from 1981 until 1997.   The defendant insisted that she stay at home.   In 1997, the parties built a new home and the defendant told the plaintiff that she had to get employment so that they could afford the home.   The plaintiff got a part-time job at Shaw's Supermarket retrieving carts from the parking lot.   She was elevated to a cashier and eventually went through and graduated from the management program at Shaw's.   In 2002, she became a full-time employee at Shaw's.   In June 2009, the plaintiff was laid off as a result of her employer closing the store.   At the time of her termination, the plaintiff was earning $18.50 per hour.   Ever since then, the plaintiff has made reasonable attempts to find employment, but has not been able to do so.

The plaintiff has a combined gross weekly income of $423 and a net weekly income of $371.   The plaintiff's income is based on unemployment compensation.   The plaintiff's weekly expenses total $625.   In addition, she receives $165 per week in child support and $35 in alimony, pendente lite.   The plaintiff has a Rockville Bank checking account totaling $200.   She has a UFCW Pension with a monthly benefit at retirement of $412, a Shaw's Supermarket Pension with a monthly benefit at retirement of $76, and a Supervalue Star 401k plan with an estimated value of $9,194.   The plaintiff has a 2005 Mazda with an approximate value of $7,230 and a loan balance of $8,994.

The plaintiff has $41,021 in liabilities.   She owes $2,025 to Citibank, $3,268 to GE Capital, $313 to Dr. Bykoff, $512 to Healthwise (pediatrician), $235 to American Medical Response, $4,200 to the minor child's orthodontist, $151 to Milford Anesthesia Associates, $241 to Avon Medical Group, $219 to Quest Diagnostics, $946 to Physicians for Women's Health, $14,229 to American Adjustment, $1,453 to Portfolio Recovery & Affiliation, $642 to Kohl's, $922 to Credit Center, Inc., $761 to GEMB/JCP, $235 to NOCOFIN/35, $131 to Northeastern Credit Services, $401 to MCYDSNB, $131 to IC System, Inc., and $10,000 to her attorney.

The defendant is forty-seven (47) years old and in good health.   The defendant did not finish high school but is a trained automobile technician.   He is the owner and operator of Ellington Automotive.   The defendant has been self-employed for 28 years.   He originally owned the business with his father until his father passed away.   The defendant is now the sole proprietor of Ellington Automotive.   The business consists of servicing automobiles for regular clients and buying used cars, repairing them, and selling them.

The defendant has a combined gross weekly income of $679 and a net weekly income of $679.   He does not claim any deductions of any kind on his financial affidavit.   The defendant currently resides in a home jointly owned by the parties and has $709 in total weekly expenses.   The defendant has a Rockville Bank checking account with a balance of $35.   The defendant has a 1998 Harley Davidson motorcycle approximately valued at $6,100.   In his financial affidavit dated September 29, 2010, he claims $10,000 in additional assets owned by Ellington Automotive.

The defendant has $60,646 in total liabilities.   He owes $10,895 to his attorney;  $13,751 in medical bills, and $36,000 to his mother.   According to the defendant, his parents loaned the parties $36,000 to purchase the lot where they built their home.   The defendant did not produce any documents indicating that there was a $36,000 loan from his parents.   The plaintiff, however, testified that the $36,000 payment for the lot came from the plaintiff's and defendant's savings earned from the defendant's business.   The court does not find the defendant credible and credits the testimony of the plaintiff.

There are two properties that are assets in this matter.   First, there is a property located at 5-7 Joel Drive, Ellington, CT. The property is a two-family side-by-side duplex, (hereinafter the Joel Drive duplex).   When the parties first married, they lived in one side of the duplex.   The Joel Drive duplex is owned 50% by the defendant's mother, 25% by the defendant's brother, and 25% by the defendant.   The plaintiff was under the impression that she was a joint owner of the property with her husband, but she is not.   The parties agree that the property is worth approximately $155,000.   There is approximately $145,550 in equity.   However, the defendant's portion of the equity is 25%;  therefore, his share is $36,388.

The other property is located at 80 Crane Road, Ellington, CT, (hereinafter 80 Crane Road).   In 1996 the parties purchased the Crane Road lot with their savings.   Subsequently, the parties obtained a construction loan in the amount of $154,100, and with a $9,000 gift from the defendant's parents, the parties built a 2200 square feet, four-bedroom, two and one-half bath house on 3.88 acres.   In 1998, the parties moved in with their four children.

In September 1999 the parties separated and the defendant went to live at the Joel Drive duplex.   In January 2000, the defendant went back to the 80 Crane Road property and told the plaintiff that he was moving back in and that he did not care if the children were going with him or her.   The plaintiff moved back into the Joel Drive duplex with the four children.   The plaintiff has lived in the Joel Drive duplex with the four children separated from the defendant ever since.   The defendant has lived in the 80 Crane Road property.

The 80 Crane Street property is jointly owned by the parties.   The fair market value of the property is $327,988.   There is a mortgage to People's Bank in the amount of $119,900, a Rockville Hospital judgment lien in the amount of $303, a Rockville Orthopedic judgment lien in the amount of $446, a Peracchio, Trabitz, et al., judgment lien in the amount of $539, an Advanced Orthopedic & Sports judgment lien in the amount of $2,822, and a mortgage deed naming Robert J. Pincince as the Mortgagor and Kathleen Petersen as the Mortgagee, (hereinafter the Petersen mortgage).

The Petersen mortgage secures a Promissory Note that the defendant entered into with Ms. Petersen on February 10, 2006.   The Promissory Note is in the amount of $100,000 with interest at a rate of eight percent (8%), payable on demand or upon the sale of the 80 Crane Road property.   Even though the plaintiff is joint owner of the 80 Crane Road property, she was not aware of the Petersen mortgage until 2009.

The Petersen mortgage is the result of a bad business venture that the defendant entered into with Ms. Petersen's husband in 2005.   The defendant claims that in 2005 one of his sons was working with him and the son stole equipment and other business property.   The equipment and business property were part of the defendant's and Mr. Petersen's joint venture.   According to the defendant, Mr. Petersen was going to have the defendant's son arrested.   The plaintiff then intervened and told the defendant to do anything possible to prevent the son from being arrested.   As a result, the defendant entered into an agreement with Mr. Petersen leading to the Promissory Note. The plaintiff disputes that she told the defendant to do anything possible to protect their son.   The court does not find the defendant credible.

The defendant never provided financially to his family in any way since they separated in September 1999.   The defendant instructed the plaintiff to rent the abutting duplex apartment and to use the proceeds to support herself and the four children.   She did so.   The defendant's mother, and co-owner of the Joel Drive duplex, was aware of the arrangement the plaintiff and defendant had with respect to the rent proceeds from the duplex.   The co-owner of the Joel Drive Duplex, the defendant's mother, currently has a pending law suit in the Superior Court for the Judicial District of Hartford alleging, inter alia, that the Plaintiff has been unjustly enriched by not paying rent on the Joel Drive duplex and that she has been collecting the rents from the Joel Drive Duplex.

The parties have one minor child that continues to reside with the plaintiff in the Joel Drive duplex.   The defendant has only seen his son twice since July 4, 2010.   The defendant does not know his child's date of birth or his age.   The defendant does not know who the child's doctor, dentist, or teachers are.   The defendant has been minimally involved in this child's life.   The lack of relationship between the minor child and the defendant is directly attributable to the defendant's lack of interest.

This twenty-nine-year-old marriage broke down approximately ten years before they separated in September 1999.   The cause of the breakdown of the marriage was the defendant's excessive drinking.   The defendant is an alcoholic.   When he drank, he became aggressive and volatile.   After an incident in 1999 that lead to the issuance of a restraining order, the parties separated and have been separated ever since.   The defendant claims he has been sober for two years.

The court finds that the defendant is at fault for the breakdown of the marriage.

ORDERS

After considering all the statutory criteria set forth in Connecticut General Statutes sections 46b-56 as to orders of custody, care, education, visitation, and support of children;  46b-56a as to joint custody;  46b-56c as to educational support orders;  46b-62 as to orders for payment of attorneys fees;  46b-66a as to conveyance of real property;  46b-81, as to assignment of property and transfer of title;  46b-82, as to the award of alimony;  46b-84 as to parents' obligation for maintenance of minor child;  together with applicable case law and the evidence presented here, the court hereby enters the following orders:

Dissolution of Marriage

A decree dissolving the marriage, on the grounds of irretrievable breakdown, shall enter.

Custody Access

The parties shall share joint legal custody of the minor child, Robert Pincince, III, born November 28, 1995, primary residence with the plaintiff.   Defendant shall have access to the minor child on a schedule to be arranged by the parties taking into consideration the child's activities, needs and wishes.

Child Support

The defendant shall pay to the plaintiff child support in the amount of $165 per week until the minor child reaches the age of eighteen.   In the event that the minor child is eighteen years old and still in high-school, child support shall continue until he graduates from high-school or attains the age of nineteen.   Said child support is in accordance with the Child Support Guidelines.   The parties shall share any and all unreimbursed medical, optical, ophthalmological, psychological, orthodontic or dental expenses, 40% payable by the plaintiff and 60% payable by the defendant.

Child support shall be secured by a contingent wage withholding.

Alimony

The defendant shall pay the plaintiff $35 per week in periodic alimony for a period of fourteen (14) years from date of judgment.   Alimony shall be modifiable as to amount only.   The duration of alimony is intended to provide for the plaintiff until she reaches the age of 62 when she may begin to receive Social Security benefits if she wishes to.   Alimony shall terminate on the death of the plaintiff or defendant, the plaintiff's remarriage or cohabitation pursuant to Connecticut statute and case law.

Real Property

The plaintiff shall have exclusive possession of the marital residence located at 80 Crane Road, Ellington, Connecticut.   The defendant shall quit claim all rights, title and interest in the marital residence to the plaintiff within thirty days (30) of judgment.   The plaintiff shall refinance the bank mortgage on the residence to remove the defendant's name from the mortgage no later than five years from date of judgment.

The property has approximately $200,000 in equity, leaving approximately $100,000 in equity for each party.   The Petersen mortgage secures a $100,000 debt of the defendant.   Therefore, the remaining $100,000 in equity shall be the sole asset of the plaintiff.

Debt

The plaintiff shall be solely responsible for the debts showing on her financial affidavit dated September 14, 2010, and she shall hold the defendant harmless therefrom, except that the defendant shall pay to the plaintiff one-half of all the medical, dental and orthodontic bills listed on the plaintiff's financial affidavit incurred for the benefit of the minor child.

The defendant shall be solely responsible for the debts showing on his financial affidavit dated September 14, 2010, and he shall hold the plaintiff harmless therefrom.

The defendant shall be solely responsible for the Petersen mortgage and he shall hold the plaintiff harmless therefrom.

Post-Majority Education

The court finds that it is more likely than not that the parents would have provided support to the minor child for higher education if the family were intact.   The court shall retain continuing jurisdiction on the issue of post-majority education support of the minor child pursuant to Connecticut General Statutes § 46b-56c.

Motor Vehicles

The plaintiff shall keep as her sole property the 2005 Mazda listed in her financial affidavit.   She shall hold the defendant harmless and indemnified for taxes, registration, and insurance for said vehicle.

The defendant shall keep as his sole property the 1998 Harley Davidson Motorcycle listed in his financial affidavit.   He shall hold the plaintiff harmless and indemnified for taxes, registration, and insurance for said vehicle.

Health Insurance

Each party shall be responsible for their respective health insurance.   The parties shall maintain health and dental insurance for the minor child if available to the parent at a reasonable cost, pursuant to Connecticut General Statutes § 46b-84.

Personal Property

Each party shall retain the personal property currently in their possession.

Bank Accounts

The parties shall each retain their own bank accounts.

Pension, IRA and Retirement Assets

The plaintiff shall keep as her sole property the UFCW Pension, the Shaw's Supermarket pension and the Supervalu Star 401k plan listed on her September 29, 2010 financial affidavit.

Dependency Exemption

The plaintiff shall claim the minor child as an exemption for federal and state tax purposes every even numbered years and the defendant shall claim the minor child every odd numbered years.

Business

The defendant shall retain his business known as Sullivan Ave. Gulf d/b/a Ellington Automotive, free and clear from the plaintiff.

Suarez, J.

Suarez, José A., J.