Karen Garceau v. Albert Garceau (2010)

MEMORANDUM OF DECISION REGARDING MOTION TO CLARIFY OR REARGUE (126 )

A review of the record reveals that this matter was tried before the undersigned on October 28, 2010 and dissolution entered, pursuant to a memorandum of decision dated November 1, 2010.   Now comes the defendant, with a post-judgment motion to clarify or reargue.   The court will address each of the six points requested by the defendant in its motion.

Alimony. The court ordered that “the husband shall pay alimony to the wife in the amount of $150 per week for 3 1/2 years.   Said alimony will terminate upon the earlier of 3 1/2 years or the death of either.   It is modifiable as to amount only.”

The defendant asks whether the alimony is modifiable when the defendant retires in March 2011.

In its findings of fact, paragraph 15, the court noted that the husband is 52 years old, working full time as a corrections officer with no restrictions and looks forward to retiring at the earliest possible date to collect his pension.   Inasmuch as the defendant is not obligated to retire and that he would have an earning capacity over and above his retirement income, his voluntary retirement in March of 2011 would not necessarily be deemed a substantial change in circumstances justifying a downward modification.   In fact, it is just as plausible that he will retire, obtain new employment and have an increase in income or that he will simply remain in the same job.

Marital residence equity.   The defendant asks whether it was the intention of the court not to award the defendant any equitable share in the marital residence based on his $111,000 contribution.

In its findings of fact, paragraph 11, the court found that the marital residence is now valued at $380,000 with a mortgage of $211,000 or equity of $169,000.   The parties had stipulated and agreed that the wife would remain in the marital residence with her two minor children and assume the debt associated therewith by refinancing the existing mortgage.   In its findings of fact, paragraph 14, the court found that both parties had lost most of what they invested into the home's rebuilding but that the wife had lost much more.   In its findings of fact, paragraph 10, the court found that the wife owned the marital residence at the time of the marriage and that it had $120,000 of equity at that time.   The court found that the wife contributed most of her $155,000 premarital funds and that the husband contributed $53,000 from the proceeds of his previous home but that in the end, the equity at the time of dissolution was only $49,000 more than the wife's premarital equity.   Thus, the court determined that the husband was not entitled to recover any of the $53,000 which the court found to be his contribution since the real estate downfall and the parties' poor rebuilding decision dissipated that equity.

Husband's pension.   The defendant asks whether it was the intention of the court to award the wife a coverture fraction of the husband's pension and count the value of the pension in the division of assets.   The court ordered the husband to convey to the wife 17.5% of his retirement pension as a coverture fraction of the asset, finding that to be one-half of the marital portion.   The court did not then award to the wife a share of other assets to equalize the property distribution.

Wife's pension.   The defendant asks if it was the court's intention to not afford to the husband any portion of the wife's pension.   The court intentionally did not award to the husband any portion of the wife's pension.   The wife's financial affidavit valued her pension as $3,126 and this evidence was uncontroverted.   In sharp contrast, there was uncontroverted evidence from the plaintiff's expert that the husband's pension was worth $661,000.   The court found the wife's pension to be of such insignificant value that its division was inconsequential and the transaction costs might very well exceed any value transferred to the husband.

Husband's accumulated sick pay.   The defendant asks who will pay the taxes when the husband transfers to the wife 50% of that asset and how did the court arrive at a 50% distribution.   It was the court's intention that the wife receive 50% of the net value, after taxes of said asset.   Thus, if the husband receives the check net of taxes, he would simply pay to the wife 50% of that net amount.   If he receives that check without deductions having been made for taxes, he shall use his best efforts to compute the taxes and pay to her 50% of the net amount, subject to correction after his taxes have been filed for that year.   The court awarded to the wife 50% of this asset as it was accumulated entirely during the course of the marriage as opposed to the pension which had a premarital value (it would be illogical to assume that the husband has been saving sick days and holidays for 20 years).

Mortgage refinance.   The defendant asks when the plaintiff is required to apply for the refinance.   It was suggested by the wife and assumed by the court that her intention was to apply for a mortgage refinance as soon as possible.   While the court did not give a time frame because so many variables might apply, it is the court's expectation that she would attempt to refinance the marital residence mortgage with all due haste.

Shluger, J.

Shluger, Kenneth L., J.