Anita E. Smith v. Charles E. Smith (2010)

MEMORANDUM OF DECISION RE MOTION # 134

This matter comes to the court on a Motion for Decree Finally Dissolving Marriage After Decree of Legal Separation.   The decree was entered on February 22, 2007.

Although the parties continued to live together and have a marital relationship after the decree,¹ at least until June of 2007 when they vacationed together in Florida, they have lived apart since that time with the Wife continuing to reside in the marital residence and the Husband living in Torrington.   No written declaration of resumption of marital relations was filed as permitted by statute.   Therefore, they have been legally married since January 14, 1977, a total of almost 34 years.   It is readily apparent from even a cursory review of the pro se prepared separation agreement that it is not fair and equitable under present day circumstances and needs to be totally revised.

The Wife is 53 years old, has three years of college education, and is in poor health from a variety of ailments including hepatitis, avascular necrosis, carpel tunnel syndrome, low back pain, dental problems, post traumatic stress disorder (PTSD), eye problems which need glasses, and anxiety.   She takes six different medications and claims to need surgery including chemotherapy.   She lacks the financial ability to obtain proper medical care and is hoping to file for Social Security Disability benefits.   It is evident to the court that she is unemployable at the present time and has no income capacity.

The Husband is 54 years of age, a high school graduate, and generally in good health.   He does complain of painful kidney stones as well as a lack of strength and energy to do the demanding work of a union pipe fitter.   His financial affidavit, based on year to date average, indicates a gross income of approximately $1,300.00 and net income of approximately $840.00 per week.   He further testified that he was often out of work because of the nature of the job, 20-22 weeks this year, during which time he collects unemployment compensation.   He is on pace to gross $67,600.00 and net $41,600.00 for 2010 according to his financial affidavit.   Plaintiff's exhibit # 1 indicates that his earnings for the three years since the legal separation were as follows:  in 2007, $62,305.00;  in 2008, $77,058.00;  and in 2009, $54,854.00.   It is reasonable to assume that the income shown on his financial affidavit accurately reflects his income capacity at the present time.

The assets of the parties are very modest.   They jointly own a residence at 59 Hillside Avenue in Watertown that both agree has a fair market value of $170,700.00 and an equity, after consideration of two mortgage encumbrances, of approximately $52,000.00.²  The Husband has an annuity fund of approximately $26,000.00 and a defined benefit pension which has a present day value of approximately $44,000.00.   In addition, there are several motor vehicles with a total value of less than $9,000.00.

The parties have combined liabilities shown on their respective financial affidavits of $100,950.32.   There was little testimony regarding the debts comprising that rather substantial total.   Why the parties, who are obviously of very modest means, have not filed bankruptcy to discharge those debts and get a fresh start is a mystery.   Clearly, they will not be able to meet those obligations unless they have a dramatic upturn in their financial condition.

There were a number of family support magistrate, pendente lite and postjudgment proceedings in which court orders were entered.   All of those proceedings and orders were considered by the court and are merged into this decree.

The causes of the breakdown were not clear from the evidence although the testimony indicated it was irretrievable.   As a result, the court finds that the parties were equally at fault for the breakdown.

The court, after listening to the parties and reviewing all of the evidence, finds that residence requirements have been satisfied and neither party has been the recipient of public assistance.   All pertinent criteria outlined in Chapter 815 of the General Statutes as well as applicable case law were considered by the court in the entry of the following orders.

ORDERS

DISSOLUTION OF MARRIAGE

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

ALIMONY

The Husband, during the lifetime of either party, is ordered to pay to the Wife periodic alimony of $150 per week pursuant to an immediate wage withholding order.   During the time the Husband may receive unemployment compensation benefits, his payment shall be reduced to $75.00 per week to be secured by an appropriate withholding order.

As additional periodic alimony, the Husband is ordered to pay the monthly payments on the two mortgages encumbering the marital residence, directly to the lenders, until such time as the mortgages are paid in full by way of a sale of the property, foreclosure, or through insurance proceeds for its demise.

As further additional periodic alimony, the Husband is ordered to pay the property taxes, insurance, water, and sewer expenses associated with the marital residence.

All alimony payments shall be subject to taxation pursuant to the Internal Revenue Code, deductible by the Husband and taxable to the Wife. In addition, the Husband shall be entitled to all deductions for taxes and interest connected with the marital residence.

This article shall be subject to modification by either party in the event of a substantial change in circumstances including but not limited to the following:  the Wife's obtaining of Social Security benefits of any kind;  her failure to use the marital residence as her principal place of residence;  the sale of the residence;  foreclosure of the residence;  her remarriage or cohabitation as defined in our law.

LIFE INSURANCE

The Husband shall name the Wife beneficiary on the two life insurance policies shown on his financial affidavit in the amount of $35,000.00 each until he no longer has any financial obligation to her for alimony.   Upon reasonable request, he shall furnish the Wife with evidence that the policies are being properly maintained.   This paragraph is subject to modification.

MEDICAL INSURANCE

The Husband shall maintain COBRA medical insurance benefits for the benefit of the Wife through March 31, 2011.   Thereafter, the Wife shall be solely responsible for her own medical insurance coverage.

REAL ESTATE

The Husband and Wife shall continue their joint ownership of the property located at 59 Hillcrest Avenue in Watertown.   The Wife shall have exclusive use and occupancy of same.   In the event of a modification of alimony for any reason, this paragraph shall also be subject to modification.   The cost of any major repairs costing in excess of $500.00 shall be equally shared.   If either party advances the repair costs they shall be entitled to a credit upon final disposition of the property.

The court shall retain jurisdiction to enter orders concerning the property including ordering its sale if appropriate.   Net proceeds from any sale or other disposition of the property shall be divided equally.

Net proceeds are defined as gross selling price less balances on the two mortgages, real estate commission, and customary closing costs.   Any other liens on the property shall be the responsibility of the party incurring same.

PERSONAL PROPERTY

Each party shall retain the bank accounts, furniture and personal possessions in their respective control without claim from the other.

The Wife shall retain the 2001 Honda CRV and the Husband shall retain all remaining vehicles including the 1995 Chevy Van, 1987 Cadillac, 1995 Harley Sportster, and 1988 BMW motorcycle.

RETIREMENT ASSETS

The Husband shall transfer to the Wife, by Qualified Domestic Relations Order if necessary, one-half of his balance in the CT Pipe Trades Local 777 Annuity Plan, and one-half interest in the CT Plumbers and Pipe Fitters Pension Fund with a joint and survivor annuity election.   Any expense connected with the transfer, which shall occur within 90 days from date, shall be the Husband's sole responsibility.

LIABILITIES

Each party shall be solely responsible for any liability in their individual name.   Any joint liability shall be equally shared.

EDUCATIONAL SUPPORT ORDER

The court finds that both parties have knowingly and voluntarily waived their right to request an educational support order pursuant to statute.

COUNSEL FEES

Each party shall pay their own counsel fees.

TAXES

By April 15 of each year, until there is no longer any financial obligation for alimony, the parties shall exchange their complete IRS returns in order to determine that the payment of alimony is appropriate under the circumstances then existing.

MISCELLANEOUS

Each party shall sign any necessary documents to effectuate the orders contained herein.

Defendant's counsel shall prepare the judgment file, have it certified by plaintiff's counsel, and file it with the court within 30 days.

CUTSUMPAS, JTR

FOOTNOTES

FN1. Sec. 46b-65.  (Formerly Sec. 46-61.)   Filing of declaration of resumption of marital relations;  dissolution of marriage after legal separation decree when no declaration filed.(a) If the parties to a decree of legal separation at any time resume marital relations and file their written declaration of resumption, signed, acknowledged and witnessed, with the clerk of the superior court for the judicial district in which the separation was decreed, the declaration shall be entered upon the docket, under the entries relating to the complaint, and the decree shall be vacated and the complaint shall be deemed dismissed.(b) If no declaration has been filed under subsection (a) of this section, then at any time after the entry of a decree of legal separation, either party may petition the superior court for the judicial district in which the decree was entered for a decree dissolving the marriage and the court shall enter the decree in the presence of the party seeking the dissolution..  FN1. Sec. 46b-65.  (Formerly Sec. 46-61.)   Filing of declaration of resumption of marital relations;  dissolution of marriage after legal separation decree when no declaration filed.(a) If the parties to a decree of legal separation at any time resume marital relations and file their written declaration of resumption, signed, acknowledged and witnessed, with the clerk of the superior court for the judicial district in which the separation was decreed, the declaration shall be entered upon the docket, under the entries relating to the complaint, and the decree shall be vacated and the complaint shall be deemed dismissed.(b) If no declaration has been filed under subsection (a) of this section, then at any time after the entry of a decree of legal separation, either party may petition the superior court for the judicial district in which the decree was entered for a decree dissolving the marriage and the court shall enter the decree in the presence of the party seeking the dissolution.

FN2. Interestingly, in their proposed orders, both parties request that the property should be left in joint names with the Wife having exclusive use and occupancy.   So much for unscrambling the financial affairs of the parties..  FN2. Interestingly, in their proposed orders, both parties request that the property should be left in joint names with the Wife having exclusive use and occupancy.   So much for unscrambling the financial affairs of the parties.

Cutsumpas, Lloyd, J.T.R.