Debra Carter v. Thomas Carter (2010)

MEMORANDUM OF DECISION RENDERING JUDGMENT

The plaintiff (hereafter referred to as the wife) filed a Complaint in this court on August 2, 2009, for dissolution of her marriage to the defendant (hereafter referred to as the husband).   The Return Date was August 25, 2009.   The husband appeared through counsel on August 21, 2009.   The wife seeks dissolution of the marriage, an equitable division of property and debts, alimony, and restoration of her birth name.   The husband filed an Answer and Cross-Complaint on September 9, 2009, seeking dissolution of the marriage, alimony, an equitable division of property and counsel fees.   After status conferences, pre-trials, mediations, special master's conferences, and pendente lite hearings, none of which were successful, the matter was continued and assigned to this trial court for a limited contested final hearing.

The wife appeared at trial with counsel who represented her throughout.   The husband appeared at trial with counsel who represented him throughout.   The hearing commenced and concluded on October 13, 2010.   The wife and husband each testified.   No other witness was called by either party.   No exhibits were introduced by the plaintiff.   The defendant introduced several exhibits.

FINDINGS:

After hearing, and a careful review of the credible and relevant evidence offered during the trial, and a review of the judicially noticed court records, the court finds the following:

The wife resided continuously in the State of Connecticut for at least twelve consecutive months immediately preceding the filing of the Complaint.   She was married to the defendant by her birth name of Debra Cannella on April 4, 1987, in Rye, New York. The wife has not given birth to any child.   There is no reasonable hope of reconciliation.   The marriage of the parties has broken down irretrievably.   The State of Connecticut has not contributed any financial assistance for the support or maintenance of either party.   The State of Connecticut did not appear in this case.   The allegations of the Complaint are found to be true.   This court has jurisdiction over the marriage of the parties.

The wife completed high school and after high school she attended the Katherine Gibbs' school.   She received a certificate in secretarial training and has had no further formal education.   She is in good physical health.   Although she has asthma, it does not affect her ability to work.   She has worked full-time all throughout the marriage.   She was employed with Brown, Harris & Stevens (a real estate management company) as a receptionist when they married;  she earned $25,000 a year.   She left Brown, Harris & Stevens and went to work for Douglas Ellerman (also a real estate management company) as a secretary;  she earned $40,000 a year.   She returned to Brown, Harris & Stevens in about 2005, as an Executive Administrative Assistant;  she earns $56,576 a year.   Her average net weekly income is $820.   She also receives an annual bonus at Christmas of $1,000;  and she can work 4 to 5 meetings a year to earn an additional $200 per meeting.   She has a greater capacity than the husband to enhance her future income and to acquire assets.

For most of the marriage the wife has been the primary wage earner and at times their sole source of financial support.   Promotional opportunities with a commensurate increase in income exist for her at Brown, Harris & Stevens.

She maintains the health insurance for them through her employment at a cost of approximately $128 per week.   She carries medical, vision and dental coverage for herself and only medical coverage for the husband.   He has no other health insurance available to him.   COBRA coverage for him will cost $710 per month plus a 2% administration fee.

The husband completed high school and then 4 years of college with a bachelor's degree.   He also has a degree in mortuary science from the American Academy of the McAllister Institute of Mortuary Science.   When they married, he worked in the mortuary field.   He was completing his residency with the Williams Funeral Home to become licensed as an embalmer and funeral director in New York. Shortly after marrying he received his embalmer's license.   After obtaining the license he worked for 5 years in New York with Hirsch & Sons' Funeral Home and then with Hotters' Funeral Home as a funeral director.   In 1992 he was laid off.   In 1993 he began working for Museum Towers in New York doing light duty maintenance work for $450 a week.   In 1995 they moved to Milford, Connecticut.   By 1996, he'd grown weary of commuting daily 1 1/2 hours to New York and quit his employment in 1997 with Towers.

He has not had a full-time job since 1997.   His health had begun to decline.   He felt that he could not work full-time in the funeral business because he could not meet its physical demands.   He did not look for employment in funeral business.   He then found a part-time job in 1997 in Connecticut with Airlock doing light duty maintenance work.   He worked 20 to 25 hours a week and earned $12 per hour.   In 2002 Airlock downsized and he was laid off.   He collected unemployment until it ran out.   He was subsequently hired by the Cody White Funeral Home in Milford, Connecticut to work part-time.   After 6 months he was laid off in 2007, because he had not obtained a Connecticut embalmer's license.   He again collected unemployment ($50 a week) until it ran out in May 2009.

The husband is not currently employed and has not worked since 2007.   However, he did receive $100 to $125 in tips over 5 months (February 2010 to July 2010) delivering pizzas for a local pizzeria.   His parents continue to give him $100 every 1 or 2 weeks (as they have done for the past 12 years) for his financial support.   He expects they will continue to do so.   He has had no other significant source of income.

He allowed his New York embalmer's license to expire in 2008.   He is not licensed in Connecticut.   He can have his New York license renewed by taking a one-day refresher course and paying a fee of about $350.   He can obtain a Connecticut embalmer's license by taking a one-day test and embalming 2 bodies under the supervision of an embalmer licensed in Connecticut.   He is not in good health.   He has an enlarged prostate and an enlarged heart.   These conditions have not affected his ability to work.   He also has peripheral artery disease with a long history of bilateral chronic venous insufficiency with venous stasis disease which has affected his daily life and ability to work.   The disease is debilitating.   He cannot work or be in a standing position for any significant length of time.   Surgery is needed and will be done as soon as possible.   The husband believes it will be done by October 15, 2010.   After the surgery he will need 30 days to recuperate and rehabilitate.   He is dependent upon the health insurance available to him through the wife's employment to for the surgery and after care.   The conditions which have adversely affected his ability to work will be greatly alleviated by the surgery.   He will be able to work full-time again work as a funeral director or engage in other gainful employment after surgery, recuperation and rehabilitation.   He believes, and the court agrees and finds that he will have an earning capacity of $30,000 a year.

This is the first marriage for each of them.   They have been married to each other for 13 years.   The wife is 13 years younger than the husband.   She is 48 years of age and he is 61.   They met when she was age 19 and he was 32.   Shortly, thereafter, and before they married, she became pregnant with his child.   She did not want to have the child and terminated the pregnancy with an abortion.   He denies that the abortion was with his knowledge and consent;  he wanted to have a child.   It is unclear whether they ever discussed having children and agreed upon it, nevertheless, they married 4 years after the abortion.   It is clear that he did want to have children.   He claims that at the time he thought she did too but later realized that she had never wanted to have children.

After marrying, the wife purportedly learned that she had a cyst on each of her ovaries.   She had one of the ovaries and 1/2 of a second ovary removed in about 1988.   As a result, she was unable to conceive a child without taking fertility drugs.   She asserts that she did not take fertility drugs because they could not afford them.

He grew increasingly angry with her because she didn't become pregnant and have a child.   He believed that she didn't want a child.   She admits that there came a time after they married that she didn't want to have a child with him.   She believed that she carried the weight of the financial burdens of the marriage, that he was not a good supporter, and that he was able but just didn't want to work.   She told him that she did not want to have a child with a “deadbeat” like him.   He grew angrier and was verbally abusive towards her.   He threatened to get her fired, burn the house down and put sugar in her gas tank.   Both parties contributed to the breakdown of the marriage.   The court assigns 40% of the fault to the wife and 60% of the fault to the husband.

The wife is a one-third co-owner of the marital property located at 16-18 Casco Street in Milford.   It is a 2-family duplex dwelling.   She jointly owns it with her mother and her sister.   Her sister occupies one side and the parties occupy the other side.   The property was purchased in 1995.   It was purchased for $178,000.   The wife's mother contributed the entire down payment of $10,000.   She also paid for the installation in each unit of a new (a) kitchen floor, (b) carpeting throughout, (c) refrigerator, (d) stove), (e) dishwasher, and (f) siding for the house.   The wife, her mother and her sister secured a mortgage for the balance of the purchase price.   In 2006, they refinanced the property to pay off the first mortgage, and to make improvements which included new windows, a roof, driveway, and storm doors.

The husband contributed no dollars to purchase the property.   Although he was present at the closings, he was not otherwise involved in the purchase, original mortgage or refinancing of the property.   He and the wife pay one-half of the expenses for the property from their joint account.   The wife's sister pays the other one-half of the expenses for the property.

The property has a current fair market value of $355,000.   The mortgage balance is $282,638.   There is a net equity of $72,362 in the property.   The wife's one-third share of the equity is $24,120.   The husband contributed financially to a much lesser extent than the wife to paying towards the mortgage, taxes, insurance and taxes for the property.   He contributed to a greater extent than the wife towards the physical maintenance and upkeep of the property.   He made improvements to both sides.   He installed ceiling fans, light fixtures, toilets, sinks, molding and blinds throughout.   He painted the interior of the house.   He stained the deck and put a trellis in the backyard on each side.   He regularly mowed the lawn, did the gardening and brick work, and maintained the sidewalks and driveways until 2007 (when he was no longer physically able to do so).   Throughout the marriage he did 85% of the routine cooking, laundry, grocery shopping, and house cleaning.

Neither party brought any significant asset into the marriage.   After 13 years of marriage, they have only a few assets.   Each of them deposited throughout the marriage all of their income and monies from whatever source derived into their joint checking account until May 2008.   The husband primarily managed the account.   He paid all of the household's bills, joint bills and personal bills until 2008.   Neither of them took issue with the management of the account or expenditure of the funds by either of them.   The wife had greater income and deposited more earned income into the account than the husband.   His parents gave them sums of money from time to time which were deposited into the account.   In 1994, his parents gave the wife $20,000 to use for their bills, which she deposited into the account.   The husband used the $20,000 to pay their household bills, his and her credit card debts, some of the wife's transportation expenses to and from work, and his and her vacation expenses.   In May 2008, the wife opened an account in her sole name.   She has not deposited any funds into the joint account since then.   The wife has paid all of their bills since 2008, except for the cable bill and 1/2 of the electric bill.   She has a 401K, valued $674 and no other significant asset.   The husband has no 401K, deferred compensation or other asset.

Upon commencement of the trial the parties entered into an Agreement, dated October 13, 2010, for the division of their household goods.   It was approved by the court and shall be incorporated by reference into the Judgment as an Order of this Court.

In entering the following decree the court has taken into consideration, among other things, the length of the marriage, the causes of the breakdown of the marriage, the age of the parties, their health, skills, employability, amount and sources of income, distribution of the marital assets, their resources, and their respective ability to acquire work and future income.   The court has considered all of the evidence in the light of the statutory factors in Connecticut General Statutes § 46b-81 and § 46b-82 and hereby enters the following orders:

ORDERS

DISSOLUTION OF MARRIAGE:

1. A Judgment dissolving the marriage of the parties on the ground of irretrievable breakdown shall enter by this court on December 14, 2010 and become effective as of December 14, 2010.

RESTORATION OF BIRTH NAME:

2. The wife is restored her birth name of Debra Cannella.

ALIMONY

3. The husband is awarded periodic rehabilitative alimony in the amount of two hundred ($200.00) dollars per week, payable in advance by the first day of each week for a term of one year from the date of judgment.   Alimony to the husband shall terminate on December 14, 2011, upon the death of either party, remarriage of the husband, or pursuant to Connecticut General Statute § 46b-86(b), whichever occurs first.   The term and amount of the alimony may be modified pursuant to Connecticut General Statute § 46b-86(b).

4. The wife abandoned her request alimony and no alimony is awarded to the wife.

HEALTH INSURANCE:

5. The wife shall be responsible for her own medical/dental/vision/health insurance.

6. The wife shall provide and maintain the existing medical insurance, as may be available to her through her employment, at a reasonable cost not to exceed five percent of her net income, for the benefit of the husband until he is no longer eligible to be carried by her.

7. The husband shall have the right to avail himself of the wife's medical/dental/health insurance under “COBRA.”   In the event he elects to obtain COBRA medical/health insurance, she shall cooperate with him to obtain COBRA benefits through her health insurance provider;  she shall be responsible for payment of the COBRA premium until February 28, 2011.   The husband shall be responsible for payment of the COBRA premium after February 28, 2011.

LIFE INSURANCE:

8. The wife shall maintain the existing $50,000.00 life insurance policy, insuring her life.   She shall designate the husband as the beneficiary of the policy for as long as she has an obligation to pay alimony to him.   She shall provide periodic proof to the husband of the continued existence of the policy and the amount of insurance.

BANK ACCOUNTS:

9. The wife shall retain all monies deposited in the Chase Bank checking account in her individual name, listed on her financial affidavit, filed on October 14, 2010, free and clear of any claim by the husband.

10. The husband shall retain all monies deposited in the joint Chase Bank checking account listed on his financial affidavit, filed on October 14, 2010, free and clear of any claim by the wife.

AUTOMOBILES:

11. The wife shall retain and have sole possession and ownership of the 2004 Toyota Camry, free and clear of any claim by the husband.   She shall be solely responsible to pay the outstanding loan balance.   She shall indemnify and hold him harmless for any liabilities and expenses associated with the use, maintenance, and ownership of the vehicle.   He shall execute any and all documents required to confirm her ownership of the vehicle.

PERSONAL PROPERTY:

12. The Agreement entered into by the parties, dated, October 13, 2010, for the division of their property shall be incorporated by reference into the Judgment.

401K ACCOUNT:

13. The wife shall retain her 401K account free and clear of any claim by the husband.

MARITAL RESIDENCE:

14. The wife shall retain her one-third interest the marital residence at 16-18 Casco Street in Milford, Connecticut.

15. The wife shall pay to the husband the sum of nine thousand six hundred forty eight ($9,648.00) dollars representing forty (40%) of her share of the equity in the real property.   She shall make the payment to the husband no later than June 14, 2011 (six (6) months from the date of Judgment).

16. The husband shall vacate the property and give the wife exclusive possession, use and occupancy of the home by no later than February 14, 2011.

DEBTS AND LIABILITIES:

17. The wife shall be responsible for paying all of the debts set forth on her financial affidavit, dated and filed with the court on October 14, 2010.   She shall indemnify and hold the husband harmless against any claims brought against him arising from such debts.

18. The husband shall be solely responsible for paying the debts set forth on his financial affidavit, dated and filed with the court on October 14, 2010.   He shall indemnify and hold the wife harmless against any claims brought against her arising from such debts.

19. Any debt incurred postjudgment is the sole responsibility of the party incurring the debt.

COUNSEL FEES AND COSTS:

20. The wife shall contribute the sum of one thousand ($1,000.00) dollars towards the attorneys fees incurred by the husband for the dissolution proceedings.   The husband shall be responsible for payment of the remaining balance of his attorneys fees.

21. The wife shall be responsible for payment of her attorneys fees.

By the Court,

John Turner,

Judge of the Superior Court

Turner, John, J.