Lisa O'Connell v. Paul O'Connell (2011)

MEMORANDUM OF DECISION

The plaintiff who was a resident of Yantic, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on August 3, 2010.   At the time, the defendant was a resident of Yantic, 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 March 4, 2011 and March 9, 2011.   Both parties appeared at trial and were represented by counsel.

The court has fully considered the criteria of Connecticut General Statutes (CGS) §§ 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 Spear, and the defendant were married on May 18, 1991 at Norwich, Connecticut.

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 two children born to the wife since the date of the marriage;  namely, Kelsey O'Connell born March 12, 1996 and Maggie O'Connell born April 12, 2004.   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. At the time of the marriage, the wife had few assets.   The husband owned the marital residence for which he had made a $40,000 down payment and had an additional $11,000 in cash.

7. In 2005 the husband inherited from his uncle $67,000;  $40,000 of which he put into the house and thereafter, his mother gave to him a one-third interest in the West Town Street property, at Norwich Connecticut, and his interest is presently valued at $40,000.

8. During most of the marriage, the husband was a diligent, hard-working and loyal partner.   Every week, he obediently turned his paycheck over to his wife and as recently as three weeks ago, as this trial was approaching, he turned over to her his snowplowing cash receipts.   The wife fell out of love with her well-meaning husband for no compelling reason.   He is still in love with her and does not want a divorce.   The cause of the dissolution is found to be primarily hers.

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

10. The parties have been living together under the same roof with their two children and both are seeking possession of the marital residence.

11. The parties have had a very traditional, if not old-fashioned division, of responsibilities.   Neither hesitated to explain that the wife took care of the inside of the house, including the family finances, and the husband took care of the outside of the house.   Both are loving parents to their children;  however, the wife has been primarily responsible for the child care and the children are much more bonded to her.   In fact, the 15–year–old is estranged from her father and the younger child is beginning to mimic those traits.

12. It is without a question that it is in the children's best interest to remain in the marital residence;  the only home they have ever known.   Moreover, the husband's parenting plan would necessarily split the sisters from each other while the wife's parenting plan would keep them together.

13. While the court is reluctant to reward the wife with possession of the marital residence and primary custody of the children when she is primarily responsible for the breakdown of the marriage, it cannot be denied that she is an excellent mother with whom the children are closely bonded.

14. There presently exists as marital assets the marital residence which the court finds to be worth $195,000 with a mortgage of $146,000 or equity of $49,000, the husband's Chevrolet truck valued at $14,200 with no loan, the wife's Hyundai valued at $8,000 with a $1,000 loan, the children's bank accounts valued at approximately $30,000, the family bank accounts valued at approximately $1,000, cash in the wife's custody in the amount of $2,000, mutual funds in the amount of $1,000 each, two life insurance policies with $10,000 of cash surrender value each, the wife's 401(k) plan valued at $10,500, the husband's retirement plan valued at approximately $13,000, the husband's fire department pension of unknown value, the husband's bank account valued at $800, the husband's 1/3 interest in 232 W. Town St. valued at $40,000 and the husband's cash of $500.

15. The parties' debt includes the husband's attorney fees in the amount of $20,438, the family's MasterCard of $5,000, and the wife's JC Penney card of $800.   Both parties have used marital funds to finance their expensive divorce but the wife appears to be paid up to date and the husband has significant fees due and owing.

16. The marital residence was bought by the husband prior to the marriage.   The husband contributed significantly to the renovations from his earlier inheritance and the house was completely renovated in September 2009 when a mortgage in the amount of $150,000 was taken.   The home has a rental apartment which has a fair market rental value of $800 per month but is presently empty.

17. The wife's 401(k) plan had $19,000 in it but has been reduced to $10,519 due to withdrawals for litigation and other ongoing expenses.

18. The husband has always worked for his brother who owns a painting contractor business.   He earns $860 per week plus an additional $440 per week gross or $1,300.   The wife is an accounting clerk earning $640 per week gross and will earn an additional $800 per month or $186 per week in rental income for a weekly gross of $826.   In addition, the husband traditionally received a modest year-end bonus from his employer who is his brother and a gift from his elderly aunt which were conspicuously absent this year.   Moreover, the husband has done side jobs and snowplowing in the past.

19. The wife is 42 years old and the husband is 48 years old and both are in good health except the wife suffers from Lupus which flares up from time to time causing fatigue, joint and muscle pain and swelling.   Notwithstanding, she is able to work full time, be primarily responsible for the children and manage her households duties.

20. 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.

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).

In any custody order, the court is bound by what is in the best interests of the children.  Simons v. Simons, 172 Conn. 341 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260 (1953), CGS § 46b–56.   The court must also give consideration to the preference of a child or children if that child is of sufficient age to be capable of forming an intelligent decision.   The rights, wishes and desires of the parents are also a factor to be taken into account.   Both considerations, however, must be subordinated to the best interest of the child.  Ridgeway v. Ridgeway, 180 Conn. 533, 541 (1980).

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, 386–87, 844 A.2d 250 (2004);  Werblood v. Birnbach, 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.

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 therefore 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.”

ORDERS

The court orders the following:

1. The parties shall enjoy joint custody of the minor children with primary residence in the plaintiff and reasonable rights of visitation in the defendant.

The defendant's access with the older child, Kelsey, shall be at her request, the court realizing that she is presently distanced from her father.

The defendant's access with the younger child, Maggie, shall be every Tuesday, Wednesday and Thursday from after school until 6:45 p.m. and alternating weekends to include Saturdays from 9 a.m. (if the father is not working and 1 p.m. if he is working) to 6:45 p.m. and Sundays from 9 a.m. to 6:45 p.m.

Commencing May 27, 2011 but not before the father has suitable housing for overnights, father's alternating weekends with Maggie shall be from 1 p.m. on Saturday (or 9 a.m. if he is not working) until 6:45 p.m. on Sundays.

The parties shall alternate Christmas such that mother shall have the children for the Christmas holiday, 6 p.m. on Christmas Eve through 2 p.m. on Christmas Day in all even-numbered years and the father will have the same access for the Christmas holiday in all odd-numbered years.

On Thanksgiving, the parties shall alternate such that mother will have the children for the Thanksgiving holiday in all odd-numbered years and the father shall have the children for the Thanksgiving holiday in all even-numbered years.   The Thanksgiving holiday shall be defined as 9 a.m. through 7 p.m. on Thanksgiving Day.

The mother will have the children on Mother's Day from 9 a.m. to 6 p.m. and the father will have the children on Father's Day from 9 a.m. to 6 p.m.

The father will have regular telephone access with Maggie on days that she is not with him and the mother shall have regular telephone access with Maggie on the weekend days when she is not with her.

The father shall not participate in any firehouse calls while Maggie is in his care nor leave her with any third parties without the prior consent of the mother.   He will stay within sight of her when she is with him at the firehouse.

Each parent shall keep the other notified of the children's health, scholastic activities, extracurricular activities and well-being at all times and each parent shall be entitled to be in attendance at all medical appointments for Maggie.

2. 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.   Kelsey will continue in therapy and Maggie shall be screened for therapy.

3. The husband shall pay child support to the wife in the amount of $209 per week and the parties shall divide any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or work-related day care costs, 43% payable by the husband and 57% payable by the wife.   This is consistent with the child support guidelines when the husband's cash income and the wife's anticipated rental income is considered.

4. The husband shall pay alimony to the wife in the amount of $100 per week for the earlier of ten years, the death of either party or the wife's remarriage or cohabitation pursuant to the statute.

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

6. The wife shall maintain medical and dental coverage for the minor children as available through her employment at a reasonable expense.

7. The husband shall quit-claim to the wife the marital home and the wife shall execute to the husband a note in the amount of $24,500 with no interest, secured by a mortgage on said home payable upon her remarriage or civil union, the death of either party, her ceasing to use said home as her primary residence or upon the high school graduation of the youngest minor child, whichever is first.   Said debt shall not be dischargeable in bankruptcy.   She shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the husband harmless and indemnify him for any such expenses.

8. The husband shall retain his Chevrolet truck.   The wife shall retain her Hyundai vehicle.

9. The parties will share equally the Dime Savings Bank accounts.   The husband will keep his $800 bank account and $500 of cash and the wife will keep her $2,000 of cash.   Each party will keep their respective retirement accounts but the husband shall transfer 50% of the marital portion of his Fire Department pension to the wife by way of a qualified domestic relations order and the parties shall share equally the expense of that transfer.   Each party will keep their respective mutual fund in the approximate amount of $1,000.   The parties will jointly take control of the Dime Savings Bank accounts, earmarked for the children and pursuant to their stipulation in open court, will use that money for their children's further education.

10. The wife shall take her Prudential life insurance policy and the husband will take his Prudential life insurance policy with death benefits of $52,000 and cash value of approximately $10,000 each.   The parties will continue to maintain those policies or replace them with term policies and, keep the cash value.   Likewise, the husband may take his Prudential policies of $10,000 and $5,000 of death benefits and keep them in full force and effect or cash them in for the surrender value if, and only if, he replaces them with term policies.   All term policies shall remain in full force and effect until such time as the youngest child is no longer eligible for child support or post majority educational support.

11. The husband shall retain his 1/3 interest in 232 West Town St., Yantic, Connecticut.

12. Each shall pay their own counsel fees.

13. The GAL fees, found to be reasonable, shall be shared equally by the parties and shall be paid in full within six months.

14. The husband shall pay his Cabela's bill, the $5,000 MasterCard bill and his attorneys fees.   The wife shall pay her 401(k) loan, her car loan and her JC Penney bill.

15. Each party shall have one child to claim for the tax dependency exemption until there is only one.   Then they shall alternate with the wife taking odd years and the husband taking even years.

16. Upon the husband's vacating the marital residence, the parties shall divide their personal property, tools and furnishings.   If they are unable, they shall submit the issue to Attorney Sikander Rana for binding arbitration and share equally the cost.

17. 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.

18. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.