Kristine Danback v. Frederick Danback (2011)

MEMORANDUM OF DECISION

The plaintiff brought an action for legal separation on August 25, 2008, with a return date of September 16, 2008.   The defendant filed a cross complaint claiming a dissolution of marriage instead of a legal separation.   This action was commenced in the judicial district of Danbury where both parties resided for more than one year before the commencement of the action.   Subsequently, the plaintiff amended her claim for relief to seek a dissolution instead of a legal separation.

The parties have three children born of this marriage:  Brian Matthew Danback,¹ born 11/3/97;  Jaiden B. Danback, born 3/19/04;  and Reid P. Danback, born 11/7/07.   The court finds the allegations of the complaint, as amended, have been proven by both parties, and therefore dissolution of the marriage is granted on the grounds of irretrievable breakdown.

During the course of the litigation between the parties, disputes over custody and visitation occurred so that a guardian ad litem was appointed and the case was transferred to Middletown for resolution on those issues.   The issues were ultimately resolved by an agreement.   The agreement was adopted into a Parental Responsibility Plan, which was agreed to by the parties and the guardian ad litem, and ordered by Judge Calmar on February 3, 2009.   That agreement and order is incorporated by reference in this court's final order.

The court notes that in the agreement there are three paragraphs that have specific financial orders, namely paragraphs 7, 11 and 19.   These paragraphs are incorporated by reference in addition to other financial orders as issued by this court.

After the orders concerning visitation and custody were entered in Middletown, Judge Lynda Munro referred this case to this court for final hearing as to the dissolution and financial orders.

This case commenced before this court in June 2010, and was heard in about four hearings, the last of which was about two weeks ago.   The delay in hearings occurred by request of both parties' counsel who tried to have their clients reach agreement, but were unsuccessful in their efforts.

The financial proposals on both sides were widely divergent and in many instances, did not take into account the parties' current financial status.   For example, the plaintiff was seeking $700 per week in child support and $1,600 per week alimony.   Child support guidelines submitted by the plaintiff showed the defendant's net income as $2,586 (as corrected by court;  see below), but his affidavit showed only $2,355.   On the other hand, the defendant proposed that the plaintiff, who made $412 net per week from unemployment, should pay her own COBRA insurance.

The plaintiff's and the defendant's child support guidelines worksheet will form the basis for the court's determination of child support.   The court also notes that the mortgage and taxes on the martial home is about $1,000 per week.   In the future, any substantial change in circumstances will need to be addressed by the filing of motions for modification.   As the court will point out later, the parties have been in a state of financial flux since the divorce commenced.   The court will enter orders based upon the parties' current financial situation as follows:  The plaintiff's affidavit reflects gross income of $465 from unemployment with a net of $412 per week.   The defendant's affidavit reflects a gross income of $3,785 per week with a net of $2,355 per week.

Both parties are well educated.   The plaintiff has a doctorate in psychology and the defendant is a college graduate who had a good job in the business sector.   Unfortunately, they both fell prey to the financial recession, as did so many others.   Shortly after the dissolution action was started, the defendant was receiving an income of $4,711.52 per week in severance;  this severance ended on February 1, 2009.   The plaintiff made $1,027.08 gross per week as an assistant professor of psychology at Western State University until she was laid off.

In their financial heyday, the parties spent a lot and built a house which was valued by them in 2008 between $850,000 and $889,000, but which required them to pay about $1,000 per week for the mortgages and taxes on the property, never mind the utilities.   When the defendant lost his job and income, he took $120,000 from his 401k to pay the mortgage, taxes and utilities on the property.   The court found that he was paying pendente lite child support in the amount of $500 per week and a very small amount of alimony.

The plaintiff lost her job and has been receiving unemployment in the approximate amount of $485 gross per week.   She has attempted to get a job at various universities, but has been unsuccessful.   The plaintiff has taken a test in New York where she went to school to become a licensed psychologist so that she could have a private practice if she was unable to find employment.   At the time of the final hearing, she did not have the results of that test.   The defendant obtained his present job with a salary substantially less than his previous job.

During the hearings the defendant pointed out the plaintiff's “spendthrift” ways and the plaintiff pointed out the defendant's girlfriend and called her as a witness to verify their cohabitation.   It was in that context that the court received divorce proposals.   Each side submitted proposals by individual subject matter.

In arriving at its decision on property and financial issues, the court took into account all of the factors in §§ 46b–81, 46b–82 and 46b–84 of the Connecticut General Statutes as well as the Child Support Guidelines.

A. Support of the Minor Children.

The court examined the guideline worksheet submitted by the plaintiff.   There was a discrepancy between the plaintiff's guideline worksheet ($127) and the defendant's affidavit ($227) as to the deduction for social security.   The court checked and found out that the correct amount is $227.   Using the correct figure, the defendant is responsible for child support in the amount of $508 per week in accordance with the Child Support Guidelines.

The court is not granting the defendant's proposal that alimony and child support be unallocated as a combined amount based upon the percentage of his income.

According to the child support guidelines worksheet, as corrected, the defendant shall pay 69% of the unreimbursed medical and child care expenses if the defendant pays no alimony to the plaintiff.   If the defendant does pay alimony, that percentage is subject to change.

The plaintiff seeks support of Brian and Jaiden until age 21 pursuant to § 46b–84c of the Connecticut General Statutes.   The court will neither grant nor deny that proposal for the following reasons:

1. The court received no expert evidence on this subject as is common practice in such matters.

2. In the context of attention deficit disorder, this request is premature.   If the parties cannot agree, they may be heard on this issue when the children are 17.   It should be noted that there are two requirements that need to be established:  (a) Mental or physical disability as defined in subsection 15 of § 46a–51 of the Connecticut General Statues;  and (b) The child who resides with the parent is principally dependent upon the parent for maintenance until the child reaches the age of 21.

B. Sale and Presale of Home at 13 Shepherd's Way, New Fairfield, CT

Both parties agree that the marital property should be sold as soon as possible.   The court will order the sale.   The parties should seek the guidance of their realtor with regard to setting a sale price.   The court will reserve the right to resolve a dispute over the selling price.

There are two disputes between the parties concerning the sale of the martial home.   The first dispute concerns the disbursement of the net proceeds of the sale of the property.   The plaintiff seeks 100% and the defendant seeks 50% of the net sale proceeds.   The court will order that each party receive 50% of the net sale proceeds.   In reaching its decision, the court considered the fact that the defendant liquidated $120,000 of his 401k to keep the mortgage and taxes current.

The second dispute is the issue of payment of the mortgage and taxes on the property pending its sale.   The plaintiff proposes that the defendant pay her $160,000 in alimony, without the entering of a court order, requiring her to pay the mortgages and taxes on the property.

The defendant proposes that prior to the sale of the family home, he would pay the first mortgage, the Heloc mortgage, real property taxes, utilities, maintenance costs and minor repairs;  that he would be entitled to take tax deductions for those payments;  and that he would not be obligated to pay the plaintiff periodic alimony until the house is sold.

The court orders the defendant to pay the first mortgage, the Heloc mortgage, real estate property taxes, utilities, maintenance costs and minor repairs until the marital property is sold.   In addition, the court orders $1.00 per year alimony to the plaintiff until the property is sold, which amount may be modified if the defendant fails to make these payments or there is otherwise a substantial change in his financial circumstances.   The defendant is entitled to the tax deduction for paying the mortgage interest and taxes.

The pre-sale process of making sure that the marital home expenses are taken care of is necessary to avoid issues of credit reports that may jeopardize the defendant's current employment and future employment possibilities.

As the court noted before, the parties' finances have been in flux for at least two years.   The court orders the preparation of financial affidavits when the property is sold and the scheduling of a court hearing proximate to the date of sale of the property.   By that time, the court may know if the defendant is still employed, and if so, whether he has accrued any bonuses from his current employer, and whether the plaintiff is employed.

Each party shall notify the other of any change in their income status between now and their next court hearing.

C. Alimony

Alimony shall be paid by the defendant to the plaintiff, but not in the manner of either of the parties' proposal.   Periodic alimony other than $1.00 per year shall start when the house is sold, but earlier if there has been a failure to comply with the court orders, as provided in Section 2 or if there has been a substantial change in circumstances as provided in § 46b–86c of the Connecticut General Statutes.   The orders relating to the defendant paying the mortgage, etc. will be of benefit to the plaintiff as she will not have to pay taxes on those payments.   As long as the defendant is not paying alimony, his contribution will be 69 percent of daycare and uninsured medical benefits.   Whenever alimony is ordered, it shall terminate on the first of the following events:

(1) When the youngest child reaches 13;

(2) Death of either party;

(3) Remarriage of the wife;  or

(4) Cohabitation of the wife pursuant to C.G.S. § 46b–86(b)

Each party shall keep the other informed about changes in income from the date of the filing of this decision until there is no longer an obligation to pay alimony or support.   This will enable each party to be informed in the event that either seeks a modification.   The court may award any modification from the date income is received, rather than from the date the information is received.   The increase in income may come from salary, bonuses, lottery winnings or any other source.   Further, the parties shall exchange income tax returns so long as there is an obligation to pay support or alimony.

D. Life Insurance

The defendant shall maintain his two life insurance policies in the face amount of $1,000,000, naming the plaintiff, both individually and as Trustee, and the minor children as beneficiaries for so long as defendant has an alimony or child support obligation.   The defendant shall name the children as beneficiaries only when his obligation to pay alimony has terminated.   The defendant shall maintain such policies in good standing until such time as his child support and post-secondary educational obligations cease.   The defendant shall provide to the plaintiff, once a year, evidence that the policies remain current and are for the benefit of the minor children.

E. Defendant's Pension

The plaintiff shall receive an assignment of 50% of the value of the defendant's pension for that portion earned by the defendant during the marriage (the coverture fraction, 1/2 of the 11/15's) when, and if, the pension goes into pay status.

F. Health Insurance

So long as it is available at his place of employment, the defendant shall maintain medical insurance coverage for the benefit of the minor children until the youngest child attains the age permitted by statute as a matriculating student.   In the event that health insurance is not available at the defendant's place of employment, but is available at plaintiff's place of employment, she shall insure the children.   In the event that health insurance is not available at either place of employment, the parties shall share the cost of insurance, with each party paying an amount proportionate to their gross income benefit for one year.   The defendant shall be responsible for covering the plaintiff's COBRA benefit for one year unless she is employed however, he may take that amount from his 401k, if necessary.

G. 401k

The parties have a 2009 tax liability assessment based upon aggregate withdrawals of approximately $120,000 for family-related expenses for which no taxes were withheld.   Once the tax liability, which is estimated to be approximately $55,000 if paid by April 15, 2010, is accurately ascertained, said liability may be paid from the remaining 401k funds.   It is understood that this payment will then result in another taxable event.   Each party will receive 50% of whatever is left after all taxes are paid by QUADRO.

H. Automobiles

Each party shall have ownership of whatever automobiles they currently operate and shall be responsible for taxes, insurance and maintenance on said vehicles.   Each party will execute documents necessary to transfer ownership.

I. Bank Accounts

The plaintiff shall retain sole ownership of the bank accounts in her sole name listed on her financial affidavit, except as otherwise provided.   The defendant shall retain ownership of the bank accounts in his sole name listed on his financial affidavit except as otherwise provided.

J. Unvested Stock Options

The defendant shall be entitled to retain his unvested stock options, if any, from his former employer.

K. Tax Deduction

If both parties are employed, each will claim one child as a dependent and alternate the third child on a yearly basis for the purposes of a tax deduction.   If one party is unemployed so as not to need a deduction for any child, then the other party will claim all three children as a deduction.   When there are only two children and both parties are employed, each will claim one child as a dependent.   When there is only one child and both parties are employed, the parties will alternate years for claiming the child as a dependent.

L. Personal Property

The defendant shall submit a list of any personal property he wants from the marital residence.   If there is a dispute this may be mediated and upon failure of the mediation or arbitration, furniture and furnishings shall be RETURNED or RETAINED?? by the plaintiff.

M. Time Share

The time share shall remain in both names.   If the parties cannot agree on alternating use or sharing the costs and maintenance of the time share, then the time share shall be sold and each party will receive 50% of the net sale proceeds.

N. Educational Support Order

The court shall retain jurisdiction for the entry of educational support orders under C.G.S. § 46b–56c.

O. Pendente Lite Orders

Any violation of pendente lite orders regarding payments that have not been made shall not merge in this judgment.

All proposals by both parties not addressed herein, are not ordered.

SO ORDERED.

BY THE COURT,

Barall, J.T.R.

FOOTNOTES

FN1. In the original complaint a typographical error was noted with regard to the misspelling of Brian's last name.   The court corrected it..  FN1. In the original complaint a typographical error was noted with regard to the misspelling of Brian's last name.   The court corrected it.

Barall, Herbert, J.T.R.