James Johnston v. Karen A. Johnston (2011)

MEMORANDUM OF DECISION

The parties come seeking a dissolution of their marriage.   To their credit, they had already resolved many of the issues and were seeking judicial intervention ‘only as to the issues of alimony and the possible division of the husband's 401(k) asset.

Most of the facts are not in dispute.   The parties were married in the early part of 1993 and had their first and only child by the end of that year.   The plaintiff is currently employed by Otis Elevator in Bristol, Connecticut and has an average weekly gross income as of the end of 2010 of $1,129.00.   Said amount includes some overtime.   The defendant wife, who had been employed for many years and then experienced approximately two and one-half years of unemployment, is now employed managing condominium associations.   She just recently received a small raise and now has a weekly gross income of $742.00.   The parties own a home in Manchester, Connecticut, but it is in foreclosure.   The parties just recently were discharged from their liabilities in a Chapter 7 bankruptcy proceeding.   According to the testimony of both parties, they each reaffirmed certain obligations.   The defendant reaffirmed her car loan.   The plaintiff reaffirmed his obligation to the mortgage holder ¹ and some other items.   The defendant vacated the marital home in September 2010, and now lives in a rented condominium in Vernon, Connecticut.   Jessica, their daughter, is a junior in high school and divides her time approximately equally between her parents.   There are no disputes involving the child and the parties are to be commended for successfully negotiating that part of their dissolution.

Where the parties do not agree is how their finances were handled throughout the course of their eighteen-year marriage.   The defendant complained that her husband was very secretive about money and told her that it was his money and none of her business.   They apparently always maintained separate bank accounts although they each did contribute in some fashion to the family bills.   She also complained that their financial difficulties stemmed from the fact that the husband spent a great deal of money on unnecessary things.   The example she cited numerous times was that he bought three expensive flat screen televisions at once during the period of time that she was unemployed.

As one might assume, the plaintiff husband had a different view of their financial history.   He believed that their problems were caused by the fact that his wife had lost her job and could not find work acceptable to her for over two years.   He testified that he first borrowed against his 401(k) benefit at Otis Elevator and then withdrew money from that asset when he believed that the loan proceeds were insufficient to deal with their debt and regular bills.   He could not recall the original loan amount he took three or four years ago, but he currently still owes over six thousand dollars to the asset.   This obligation, of course, was not dischargeable in the bankruptcy and he is required to repay the debt.   He did testify that he withdrew about forty thousand dollars from his 401(k).  The undisputed testimony was that the defendant wife did not know about these withdrawals until she learned about them in the divorce discovery proceedings.   It is also undisputed that the plaintiff husband moved his elderly mother into the marital home without any prior discussion or agreement with his wife.

The wife depleted her 401(k), apparently either by agreement or at least without objection, in moving out of the marital home.   She did not have exact amounts but believed that she withdrew approximately sixteen thousand ($16,000) dollars from her plan.   It went to a security deposit for her new dwelling, the payment of four (4) months advanced rent and furnishing the condo.²  She has about eighteen hundred ($1,800) dollars left in the asset, a benefit from a former employment.   The plaintiff, at age 55, is approximately ten years older than her husband.   Both parties have some health problems including Type II Diabetes.

After hearing the testimony of the parties and reviewing the exhibits presented to the court, the following findings are made.

1. The court has jurisdiction to hear this matter;

2.  All statutory stays have expired as of November 16, 2009;

3.  The breakdown of the marriage and the other allegations of the complaint have been proven;

4.  The parenting plan presented orally to the court is fair and reasonable and is in the minor child's best interests.

The Court, having considered all of the statutory criteria as set forth in Connecticut General Statutes §§ 46b-81 and 46b-82 and the other applicable statutes, HEREBY ORDERS:

1.  The marriage of the parties is dissolved;

2.  Joint legal and physical custody of the minor child Jessica (10/1/93) is to be shared by the parties.   For the purposes of educational placement only, the plaintiff's address shall be considered Jessica's primary residence so long as he lives in Manchester, Connecticut;

3.  The presumptive child support as calculated by the court 3 would be the plaintiff paying $154 per week and the defendant paying $109 per week, with a 53% contribution to unreimbursed medical and dental expenses for the defendant and 47% for the plaintiff.   The court finds that it is reasonable and appropriate to deviate to zero child support and an equal division of all unreimbursed medical and dental expenses based on the shared parenting plan;

4. The plaintiff shall continue to provide the minor child with medical and dental insurance as is available to him through his employment at reasonable cost for so long as the insurance plan allows.   This provision was an agreement of the parties and is adopted by the court.   The provisions of CGS § 46b-84(e) shall apply.

5. The court shall retain jurisdiction regarding post-secondary education pursuant to CGS § 46b-56c;

6.  The defendant shall quit claim to the plaintiff all of her right, title and interest in the real property located at 82 Cooper Hill Street, Manchester, Connecticut forthwith and he shall indemnify and hold her harmless from any liability stemming from the ownership and/or occupancy of said real property.   Until such transfer is complete, the plaintiff shall enjoy exclusive use and occupancy of said property;

7.  The defendant shall execute, in a timely fashion, any and all documents necessary to facilitate the plaintiff's efforts to modify the current mortgage obligation on said real property.   She shall not be required to execute any such document that might impose or extend any liability for said property to the defendant;

8.  Any marital debt not discharged in the bankruptcy proceeding shall be divided equally among the parties with the specific exception of debt or debts relating to the real property identified above;

9.  Each party shall retain free and clear of any claim by the other the motor vehicle(s) currently in their possession.   Each shall indemnify and hold harmless the other from any and all liability stemming from the ownership and/or operation of said vehicle(s).  If any documentation is necessary to effectuate this provision, the parties shall promptly execute and deliver such document so long as it at no cost to that person;

10.  Each party shall keep free and clear of any claim from the other their respective 401(k) assets.   The plaintiff shall be solely liable for the repayment of his 401(k) loan;

11.  The plaintiff shall transfer to the defendant one-half (1/2) of his Otis Elevator defined benefit pension with an approximate vested balance of $15,631.17, by drafting and executing an appropriate Qualified Domestic Relations Order (QDRO).   The parties shall share equally the cost of the preparation and delivery of such order.   The court will retain jurisdiction over this matter until the QDRO is accepted by the plan administrator;

12.  The plaintiff shall transfer to the defendant one-half (1/2) of the marital portion of his disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is the number of reserve retirement points earned during the period of the marriage, divided by the plaintiff's total number of reserve retirement points earned.   Plaintiff shall provide to the court the necessary information to determine the value of the numerator as soon as is possible but not longer than ninety (90) days from the date of this judgment.   The court will retain jurisdiction over this matter until such time as the request for the plaintiff's disposable military retired pay is determined and the division of payments between the parties is accepted by the appropriate military authority;

13.  The plaintiff is to pay to the defendant periodic alimony in the amount of $75 per week commencing immediately.   Said alimony payments shall be made until the first of the following events occur:  the death of either party;  the remarriage of the defendant;  the defendant cohabitating with another as described in CGS § 46b-86(b);  or the defendant's 66th birthday.   Said alimony payments shall be taxable income to the defendant and shall reduce the plaintiff's taxable income.   Said payments shall be secured by a contingent wage withholding order;

14.  The parties shall file joint tax returns for tax year 2010.   The cost of the preparation, if any, shall be shared equally.   The parties shall share equally any refund.   Any tax liability shall be paid by the party responsible to the extent that it can be determined.   If it cannot, the parties shall share equally any liability owed to the various taxing authorities;

15.  For tax filings in future years, the parties shall alternate taking the minor child Jessica as a dependency exemption.   The plaintiff shall have this right in all odd years and the defendant in all even years;  and

16.  The defendant shall have her birth name of Howat restored to her and shall now be known as Karen A. Howat.

SO ORDERED.

BY THE COURT

Adelman, J.

FOOTNOTES

FN1. The plaintiff will only have an obligation on the mortgage if the foreclosure mediation is successful and he can keep the house.   If the house is lost, he will not have any personal liability to the holder of the mortgage note..  FN1. The plaintiff will only have an obligation on the mortgage if the foreclosure mediation is successful and he can keep the house.   If the house is lost, he will not have any personal liability to the holder of the mortgage note.

FN2. She testified that since she was in the middle of a bankruptcy, her landlord wanted the advance rental payments..  FN2. She testified that since she was in the middle of a bankruptcy, her landlord wanted the advance rental payments.

FN3. Neither party presented a child support guidelines worksheet to the court..  FN3. Neither party presented a child support guidelines worksheet to the court.

Adelman, Gerard I., J.