Sophia M. Byrnes v. Timothy A. Byrnes (2011)

MEMORANDUM OF DECISION

The plaintiff wife (“wife”), by the name of Sophia M. Altamura and the defendant husband (“husband”) were married on July 15, 2000, in Stamford, Connecticut.   The parties have three minor children born to the wife since the date of the marriage, to wit:  Austin Byrnes, born July 20, 2001;  Nicholas Byrnes, born December 23, 2002;  and Nora Byrnes, born October 4, 2006.   The minor children reside with the wife in the marital home at 143 Minivale Road, Stamford, Connecticut.   The parties have lived separate and apart, since the husband left the marital residence by virtue of a civil restraining order following an incident of family violence in June 2009.   The husband resides in a rental at 26 Bailey Avenue, Darien, Connecticut.

The husband is 38 years old and is currently unemployed.   He was terminated by his employer, Omnicom Management, Inc., as a chauffeur/body guard in August 2010,¹ after which he received a three-month severance amounting to $24,000.00 payable in installments.   During his last two full years of employment, the evidence shows that the husband earned between $88,000.00 and $91,000.00 per annum, including overtime.  (Exhibits # 20, # 21, and # 26.)   Prior to Omnicom, he was employed as a driver for Rudy's Limousine.   His sole source of income at present is unemployment compensation of $537.00 per week.   He has a high school education, and he described his health as good.

The wife is 35 years old and is self-employed.   She has operated a licensed day care called “Cottontails Day Care, LLC” utilizing a portion of the marital home since February 2008.   She has two employees, an assistant and a cleaning person.   According to her financial affidavit, she has a net weekly income of $759.00 after deducting wages to her employees.   She has a high school degree and some college.

The principal asset of the parties is the family home at 143 Minivale Road. The home was purchased in September 2002 for $430,000.00, with the help of a $220,000.00 loan from the wife's parents.(Exhibit # 5.)   The husband claims that this was a gift, but he offered no credible evidence to support it.   The dwelling remains unfinished, which greatly affects its value.   The parties have a dispute as to its value, however, according to the wife's expert (Exhibit # 8), the fair market value is $925,000.00.   The husband believes that the home is worth $1,300,000.00.   He offered no expert opinion.   The evidence proffered by the wife is more credible.   As a result, the problem facing the parties is the fact that the home is “under water,” in that the first mortgage, HELOC, and a mortgage to the wife's parents taken together all total approximately $1,120,000.00, which amount is well in excess of fair market value.   On top of all that, there are between $40,000.00 and $50,000.00 in outstanding bills from various contractors.   In addition, the property is in foreclosure.   The wife testified that she has attempted to negotiate a modification of the mortgage with the primary lender, but that she has been thwarted in this effort due to husband's failure to cooperate.   Accordingly, she has asked the court to transfer title to her so that she can hopefully resolve the issue with the lender.   The court found her to be more credible regarding this issue.   Moreover, the court is firmly of the opinion that due to the clear evidence of the inability of the parties to work together, the wife's proposal is the most realistic course to preserve the home for the minor children.

Since the separation, outside of almost daily karate lessons, the husband has provided a minuscule amount of child support.   According to the wife, she has received two checks in the amount of $300.00 each, and a third one in the amount of $100.00.   There is no pendente lite order for support.   The children have been accepted for the Husky Program as of December 10, 2010.   Neither party has requested alimony, however, the court feels that given the length of the marriage, the ages of the children, and the husband's ability to earn, some provision should be made, if only on a nominal time-limited basis.

As to the cause of the breakdown of the marriage, the husband suggested that it was due to the wife's infidelity, and offered an exhibit of a dating website, purportedly visited by the wife.   The court does not give much credence to this.   On the other hand, the wife testified as to the husband's violent temper, starting with the wedding day where he angrily damaged the plumbing at the reception hall, all over a misunderstanding regarding the cash gifts, and an incident in 2007 when she had to be taken to the hospital as a result of his abusive behavior.   Her claims are buttressed by the issuance of a restraining order at the time the wife filed for dissolution.   In addition, the parties have had their differences regarding spending.   In particular, the husband was unable to satisfactorily account for the disposition of the proceeds from a large insurance settlement.  (Exhibit # 15.)   The court finds that each, more likely than not, contributed to the failure of the marriage, but the court also finds that the majority of the fault lies with the husband's behavior throughout.

The trial took place over the course of two days, and evidence closed on January 19, 2011.   At the time of the trial, the parties filed a Joint Parenting Plan dated January 10, 2011 (# 142.00), however, they have been unable to resolve two issues related to parenting. (# 141.00.)

FINDINGS

The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as, inter alia, the factors enumerated in General Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-66a, 46b-81, 46b-82, 46b-84, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:

1. That it has jurisdiction.

2. That the allegations of the complaint are proven and true.

3. That the marriage of the parties has broken down irretrievably, and that ample evidence exists that while both parties have contributed to said breakdown, the primary fault lies with the husband.

4. That during the marriage, neither party has received any aid or assistance from the State of Connecticut or any town or political subdivision thereof.

5. That where time-limited alimony is awarded, there must be “sufficient evidence to support” the court's finding that it is appropriate.  Wolfburg v. Wolfburg, 27 Conn.App. 396, 399 (1992);  and that taking into consideration the factors set forth in General Statutes § 46b-82, including the age, health, earnings, and work experience of the wife, in light of all the facts and circumstances of this case, a time-limited award of alimony is appropriate.  Ippolito v. Ippolito, 28 Conn.App. 745, cert. denied, 224 Conn. 905 (1992);  Milbauer v. Milbauer, 54 Conn.App. 304, 312-15 (1999).

6. That based upon the financial affidavits of the parties, the net monthly income of the husband is $2,327.00;  and that the net monthly income of the wife is $3,289.00.

7. That alimony and child support orders must be based upon the net income of the parties.  Morris v. Morris, 262 Conn. 299, 306 (2003);  Ludgin v. McGowan, 64 Conn.App. 355, 358 (2001).

8. That the combined net weekly income of the parties is $1,296.00;  that the presumptive basic child support is $392.00 per week;  and that the husband's share is $162.00.

9. That the Joint Parenting Plan dated January 10, 2011, is fair and equitable and in the best interest of the minor children.

10. That there are three children of the marriage, all under the age of twenty-three (23) years;  that it is more likely than not that the parents would have provided support to each of the children for higher education or private occupational school if the family were intact, in that the husband testified that he like his children to go to college, and that he would contribute to the best of his ability, and further that the husband has requested that the court to retain jurisdiction to enter educational support orders in the future.  General Statutes § 46b-56c.

ORDER

IT IS HEREBY ORDERED THAT

1. The marriage of the parties is hereby dissolved, and they are each hereby declared to be single and unmarried.

2. Parenting.

A. The parties shall share joint legal custody of the three minor children, whose primary residence shall be with the wife.   The Joint Parenting Plan dated January 10, 2011, is hereby incorporated by reference herein and made a part hereof as “Schedule A.” *

B. The wife shall be permitted to travel outside of the United States, with or without the minor children, and the husband shall cooperate fully with her, including the execution and delivery of any documentation necessary to satisfy the passport and/or visa requirements of the United States or Italy, provided any such travel with the minor children, or any of them, shall not exceed thirty (30) days in any twelve-month period, and that, except in the case of emergency, the husband shall be notified of all travel arrangements, including airline flight numbers, times of arrival and departure, and itinerary, in writing, at least thirty (30) days in advance, and provided further that he have the ability to maintain reasonable communication with the children while they are outside of the United States.   The court shall retain jurisdiction to enter orders implementing same.

C. The husband shall be entitled to Spring vacation with the children in odd-numbered years and the Winter vacation in even-numbered years.   In addition, the husband shall be entitled to two consecutive weeks with the children during the Summer recess from school.   In even-numbered years, he shall have first choice of said two weeks, provided, he gives written notice to the wife no later than March 1st of his choice of weeks.   Such vacation period shall take precedence over the normal schedule, which shall be suspended during such time, and which normal schedule shall re-commence during the week following its termination.   For purposes of this section, “two weeks” shall mean fourteen (14) consecutive 24-hour periods, commencing at 6:00 P.M. on the first day.

3. The husband shall pay to the wife the sum of one ($1.00) Dollar per year as and for periodic alimony, until the death of either party, the remarriage of the wife, her entry into a civil union, or January 31, 2021, whichever shall sooner occur.   It is the intention of the court that except for the foregoing, that the term of periodic alimony shall be non-modifiable by either party.

4. Commencing February 1, 2011, and weekly thereafter, the husband shall pay to the wife the sum of $162.00 as and for child support, until such time as the oldest child shall reach the age of eighteen years, at which time child support for the remaining children shall be adjusted in accordance with the then existing Child Support Guidelines or as a Court may otherwise direct, and in like manner at such time as the next oldest child shall reach the age of eighteen years.   The foregoing notwithstanding, if any child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or their nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b).

5. The children are currently enrolled in the Husky Program.   Any unreimbursed medical, dental, orthodontic, optical, pharmaceutical, psychiatric, and psychological expenses for the minor children, shall be divided by the parties, 29% by the husband and 71% by the wife.   In the event that either parent becomes eligible for health insurance through their employment, at reasonable cost, then, in that event, he or she, as the case may be, shall obtain and maintain such health insurance for each of the minor children so long as there is an outstanding child support obligation for that child, including post-majority support pursuant to an educational support order or a written post-majority agreement.   The court reserves jurisdiction to determine the allocation of premiums for same, as well as unreimbursed medical and dental expenses consistent with the Child Support Guidelines then in force.   The provisions of General Statutes § 46b-84(e) shall apply.

6. Each party shall be responsible for the payment of their own health insurance premiums and any unreimbursed medical expenses.

7. The foregoing paragraph notwithstanding, the husband shall promptly notify his former employer, Omnicom, as to the change of marital status and shall cooperate with the wife in obtaining continuation health insurance coverage as provided by state and federal law, if she shall so elect.   The wife shall be responsible for the payment of any premiums due for such coverage.

8. As to the jointly-owned real estate at 143 Minivale Road, Stamford, Connecticut, within fourteen (14) days from the date hereof, the husband shall convey his interest therein to the wife by means of a fully-executed Quit Claim Deed along with completed Conveyance Tax Forms.   Thereafter, the wife shall have exclusive possession of the real estate and shall be responsible for the payment of all mortgages, liens, taxes, and insurance, and shall indemnify and hold the husband harmless from any further liability thereunder.   In the event that the husband fails to comply with the provisions of the foregoing, the court will consider a judicial conveyance pursuant to General Statutes § 46b-66a upon motion duly made, to which is attached a complete legal description of the property.

9. Personal property shall be divided as follows:

A. Except as otherwise set forth herein, the remaining personal property and home furnishings at 143 Minivale Road, Stamford, shall be awarded to the wife, the testimony demonstrating that the husband has previously removed items of marital property from the premises.

B. Each party shall be entitled to keep the automobile which they are currently driving, subject to any existing liens, loans, or leases, free and clear of any claims by the other, and each party shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register same.   Specifically, the wife shall be entitled to the Jeep Wrangler and the husband shall be entitled to retain the Honda Civic.

C. Except as otherwise set forth herein, each party shall be entitled to keep their respective savings, checking, and money market accounts free and clear of any claims by the other.

D. Except as otherwise set forth herein, each party shall be entitled to keep possession of their clothing and personal effects, including jewelry, watches, and rings, free and clear of any claims by the husband.

10. Except as otherwise set forth herein, the parties shall each be responsible for the debts as shown on their respective financial affidavits, and they shall indemnify and hold each other harmless from any further liability thereon.   In particular, the wife shall be responsible for those debts shown on her financial affidavit as incurred in connection with the construction of the marital home at 143 Minivale Road, and the husband shall be responsible for the indebtedness to American Express as shown on his affidavit.

11. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.

12. The wife shall be entitled to claim the personal exemption for each of the children, so long as it is available to her, commencing with the tax year 2011 and thereafter.

13. The court hereby reserves jurisdiction to enter an educational support order pursuant to General Statutes § 46b-56c.

14. The Court hereby orders a Contingent Wage Withholding Order pursuant to General Statutes § 52-362(b) in order to secure the payment of the financial orders.

15. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h).

16. The husband having appeared to prosecute his case, the $1,500.00 bond is hereby vacated, and the proceeds are to be returned to him forthwith.

17. The escrow funds currently held by Attorney John Regan in the amount of $9,898.17, together with any accrued interest therein, shall be disbursed to the wife forthwith, free and clear of any claims by the husband, to be used by the wife to reduce the outstanding first mortgage debt, as was set forth in a previous court order.

THE COURT

SHAY J.

FOOTNOTES

FN1. N.B. Exhibit # 18 incorrectly sets forth the date of termination as August 13, 2009, however, through his testimony, the husband corrected that to 2010.*Editor's Note:  The referenced schedule has not been included with the reported opinion..  FN1. N.B. Exhibit # 18 incorrectly sets forth the date of termination as August 13, 2009, however, through his testimony, the husband corrected that to 2010.*Editor's Note:  The referenced schedule has not been included with the reported opinion.

Shay, Michael E., J.