Linda Stark v. Michael Stark (2011)

MEMORANDUM OF DECISION

The plaintiff who was a resident of Bozrah, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on February 9, 2010.   At the time, the defendant was a resident of Bozrah, Connecticut.

The court finds that it has jurisdiction and that all statutory stays have expired.

A limited contested trial was held before the undersigned on December 16, 2010.   Both parties appeared at trial and were represented by counsel.   A parenting plan for the two remaining minor children was accepted and made a court order, with the assistance of Cynthia Desmond, Guardian ad Litem (GAL), on July 16, 2010.

The court has fully considered the criteria of General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that the following facts were proven by a preponderance of the evidence:

1. The plaintiff, whose maiden name was Sharron, and the defendant were married on June 10, 1989 at Schenectady, New York.

2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.

3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.

4. There are four children born to the wife since the date of the marriage;  namely, Lisa Stark born February 4, 1991, Amanda Stark born February 2, 1992, Matthew Stark born April 13, 1994 and Rikki Stark born September 16, 1995.   No other children have been born to the wife since the date of the marriage.

5. Neither party has received assistance from any State or local agency.

6. The wife, 51 years old, is healthy, works part time at the elementary school the children used to attend earning only $200 per week and has essentially been a stay-at-home full-time mom while caring for the house and children.   The husband, 54 years old, works in engineering at Dominion nuclear power plant.   His financial affidavit shows a gross income of $1,819.90 per week or $94,600 per year plus a “variable bonus” with no amount.   Notwithstanding, there was evidence that his 2009 bonus, paid in February 2010, was $10,420 and his 2010 overtime was approximately $8,000 and that his year to date income (Exhibit 2) would translate into income for 2010 of approximately $127,000.   This is consistent with his 2008 W-2 statement showing income of $124,234 (Exhibit 4).

7. At the time of the marriage, the parties had few assets and most of the marital estate was accumulated during the course of the marriage.

8. The parties were diametrically opposed on many facts.   The wife claimed that the husband was physically and mentally abusive and often used foul language.   The husband denied this.   The wife claimed that the husband was away on business trips early in the marriage up to 300 nights per year;  the husband testified it was only 60.   The wife testified that the husband drank to excess throughout the marriage.   The husband denied this claim.

9. During the marriage, both parties experienced alcohol abuse of one form or another at various times.   The wife testified credibly that the husband was domineering, abusive, financially and emotionally controlling and undermined her as a parent.   She testified that he was unsupportive of her during her cancer treatment, refused to go to counseling and was physically abusive earlier in the marriage.   The husband denied these claims but his credibility is questionable at best.   He attempted to conceal or minimize his income even after having been reminded by Judge Goldberg at a previous court hearing that bonus and overtime income must be considered.   He appeared smug and righteous in his positions.   The cause of the dissolution is found to be primarily his.

10. The parties stipulate that the court may retain continuing jurisdiction regarding post-majority educational support pursuant to CGS § 46(b)-56c.

11. The parties have been living together in the marital residence under great tension and stress.   It is unclear if either of them can financially afford to relocate to another residence.

12. There presently exists as marital assets the marital home, which the court finds to be valued at $250,000, subject to a mortgage of $165,000 or equity of $85,000, the husband's pension valued at $85,400, the husband's Dominion stock valued at $4,000, the husband's unvested Dominion stock to be vested within a year valued at $4,000, the husband's supplemental retirement account valued at between $15,000 and $18,000, eight purebred puppies valued at $7000, the husband's IRA valued at $3,143, the off-road quad valued at $2,000, two vehicles worth little or nothing, the husband's bank account valued at $1,400 and household furnishings, tools and equipment.

13. The parties' debt includes debt from the wife's financial affidavit including Connecticut orthodontic specialists of $5,414, dental bill in the amount of $325, her sister in the amount of $11,200 (attorneys fees), Attorney Morelli-Wolfe $7,200, Comcast $150, Orchard Bank $450 and Mariani and Reck $5,150.   Debt from the husband's financial affidavit includes Chase Visa $10,450, U.S. Airways MasterCard $9,000, Dutch Point Visa $8,265, Sallie Mae student loan $13,000, and Attorney Eckert $9,000.

14. The parties stipulated and agreed that the shared parenting plan, dated July 16, 2010 regarding the two remaining minor children, would be incorporated by reference and made an order of the court.   It is essentially a shared parenting plan with the mother having the children from Sunday at noon through Wednesday morning (three nights per week) and the father having the children from Wednesday after school until Sunday at noon (four nights per week.).   Both parents and the GAL agreed that this parenting plan was in the children's best interest.   The court agrees.

15. The court finds that if this were an intact family, it is likely that the parents would have provided post-majority educational support to the children so the court will retain continuing jurisdiction regarding post-majority educational support pursuant to CGS § 46(b)-56c.

16. While the wife is presently working part time and is underemployed, she appeared earnest in her desire to return to full-time employment while maintaining the marital residence.   By cutting expenses, increasing her income and receiving sufficient alimony and child support, she believed she could maintain the marital residence for the two remaining minor children.

17. The husband also wants to maintain the marital residence and believes that he is able to refinance the mortgage and pay off his wife her share of its equity.

18. Both parties make good arguments for remaining in the marital residence but the wife's case is stronger.   The court finds that she has a stronger bond to the home and to the children and notwithstanding the existing parenting plan, the court finds that the children will more than likely drift to the parent who retains the only home they have known.   The court finds that the wife is more likely than the husband to foster a healthy parent/child relationship between the children and the other parent.

LEGAL DISCUSSION

“The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”   Gervais v. Gervais, 91 Conn.App. 840, 841, cert. denied 276 Conn. 919 (2005).  (Citations omitted).  Feldman v. Feldman, 37 Conn.App. 397, 403-04 (1995).

It is error for a court to consider the needs of the parties' adult children in the home in fashioning its alimony award.  Loughlin v. Loughlin, 280 Conn. 632, 660 (2006).

Regarding the distribution of property, CGS § 46b-81 states:

In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

The court in Lopiano v. Lopiano, 247 Conn. 356, 363-64 (1998) held:

“The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may ‘assign to either the husband or the wife all or any part of the estate of the other ․ In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party ․ shall consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.’  ․ This approach to property division is commonly referred to as an ‘all-property’ equitable distribution scheme.   See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01[2][a][v], p. 37-19.  [Section 46b-81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power.   A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series:  Family Law and Practice with Forms (1991) § 27.1, pp. 398-400.”  (Emphasis in original.)   Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).   In fact, the court has the authority to assign the debts and liabilities and to order one party to assume the joint liabilities of both parties.  Bento v. Bento, 125 Conn.App. 229, 235 (2010).

The court in McKenna v. Delente, 123 Conn.App. 146 (2010), observed:

“A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties' assets.  Casey v. Casey, 82 Conn.App. 378, 386-87, 844 A.2d 250 (2004);  Werblood v. Birnbach, 41 Conn.App. 728, 735-36, 678 A.2d 1 (1996).  “[B]ecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.”  Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993).   Furthermore, “the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property.  Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).”  Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004).  Id. At 162.

The court in Krafick v. Krafick, 234 Conn. 783 (1995), held that the purpose of § 46b-81 was “to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute-directly and indirectly, financially and nonfinancially-the fruits of which are distributable at divorce.”  Id., 797-98.  Ranfone v. Ranfone, 103 Conn.App. 243, 250-51 (2007).

The court in Picton v. Picton, 111 Conn.App. 143 (2008), held that “an equitable distribution of property should take into consideration [each spouse's] contributions to the marriage, including homemaking activities and primary caretaking responsibilities;” id., 311;  and that “a determination of each spouse's contribution within the meaning of ․ § 46b-81 includes nonmonetary as well as monetary contributions.”  Id., 153.

“A court may accept or reject such evaluations in whole or in part and ascribe its own valuations to real estate ․ The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder.  Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 430-31 (1987).”  Martin v. Martin, 90 Conn.App. 145, 150 (2007).  “Trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings ․ The trial court is granted the authority, pursuant to section 46b-81, to order the sale of the marital home without any act by either the husband or the wife, when in the judgment of the court is the proper mode to carry the decree into effect.”   Martin v. Martin, 99 Conn.App. 145, 154 (2007).

Regarding the awarding of alimony, CGS § 46b-82 states:

“At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81.   The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income ․ Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007), Eliah v. Eliah, 99 Conn.App. 829, 833 (2007).  “It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations ․” Weinstein v. Weinstein, 280 Conn. 764, 772 (2007).   Moreover, “lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate.”   Carasso v. Carasso, 80 Conn.App. 299, 304 (2003), cert. denied, 267 Conn. 913 (2004).”  Milazzo-Panico v. Panico, 103 Conn.App. 464, 468 (2007).

ORDERS

The court orders the following:

1. The parties shall enjoy joint custody of the minor child pursuant to their shared parenting agreement.   Neither party shall injure the children's opinion of the other parent by their words or their actions.   Neither parent shall permit any third party to injure the children's opinion of the other parent by their words or their actions.   Neither party shall discuss any adult matters with the children, including, but not limited to, this trial or any other court-related matter.

2. The husband shall pay unallocated alimony and child support to the wife in the amount of $800 per week for two years, $700 per week for two years, $600 per week for two years, and $500 per week for five years and the parties shall divide any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or work-related day care costs, 50% payable by the husband and 50% payable by the wife.

3. Said alimony will terminate upon the earlier of ten years, the death of either, or the wife's co-habitation, remarriage or civil union.   It is modifiable as to amount only.

4. The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to CGS § 46(b)-56c.

5. The husband shall maintain medical and dental coverage for the minor children as available through his employment at a reasonable expense.

6. The husband shall quit-claim to the wife the marital home and the wife shall use her best efforts to re-finance the home mortgage in her own name forthwith.   If she is unable to re-finance said mortgage, she shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the husband harmless and indemnify him from any such expenses.   The husband shall vacate the marital residence by noon January 15, 2011.   He shall continue to be responsible for all of the expenses associated with the marital home, pursuant to the pendente lite orders until January 15, 2011.

7. The husband shall retain his Dodge truck.   The wife shall retain her Ford vehicle.   Each party shall be responsible for all costs and insurances associated therewith.

8. The parties shall divide their tools and household furnishings equally.   If they are unable to do so within 30 days, they shall submit that issue to Attorney Robert Clark whose decision shall be binding and they will share the cost.

9. The husband shall be entitled to retain his pension in the amount of $85,400, his supplemental retirement account in the amount of $15,665, his IRA in the amount of $3,300, his bank account of $1,400 and his unvested Dominion stock in the amount of $4,000.   He shall transfer to the wife his vested Dominion stock in the amount of $4,000.

10. The wife shall retain the off-road Quad, the puppies and her bank account.

11. Each party shall maintain their existing life insurance policies for the benefit of the other so long as a duty to pay alimony or child support exists.

12. The husband shall be entitled to all of the dependency tax exemptions for the children for so long as they are eligible.

13. Each party shall pay the debts on their respective affidavits as proposed by both in their proposed orders.

14. Each shall pay their own counsel fees.

15. The parties shall share or pay any tax refund or deficiency for 2010 equally.

16. The payments and obligations referenced in these orders are intended to be family support/maintenance payments within the meaning of sections 523(a)(5) and 523(a)(15) of the United States Bankruptcy Code and not dischargeable in bankruptcy.   Each party shall be solely responsible for all debts they have been ordered to pay and they shall hold harmless and indemnify the other thereon.

17. In the event either party seeks to file a future motion to modify any aspect of the parenting plan, they shall be required to file a Request for Leave to Modify as provided for in Practice Book § 25-26, as amended.

18. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.