Jessie A. Gilbert v. Jonathan Brochstein (2011)

MEMORANDUM OF DECISION

The plaintiff wife (“wife”) and the defendant husband (“husband”) were married in New Rochelle, New York, on September 16, 1990.   No children were born to the wife since the date of the marriage despite many attempts by the parties in consultation with specialists.   The parties separated on or about November 2008, after the wife asked the husband to leave the family home.   She currently resides in the former marital home at 15 Old Rock Road, Weston, Connecticut.   The Husband resides with his significant other in a rental unit at 227 Landsdowne, Westport, Connecticut, and with whom he shares living expenses equally.

The wife is 50 years old and is in overall good health.   However, she has had some health issues including a hip replacement, sciatica, spondyliosis, and numbness in her hands.   She holds a bachelor's degree, a law degree, and a Masters in law.   The wife has held a succession of positions with various law firms, and since 2001, she has been employed in the Estates and Trusts department at Cummings and Lockwood in Stamford, where she is currently a non-equity partner, and where she earns a base salary of $220,000.00 per annum.   According to her Financial Affidavit (# 119.00) dated February 8, 2011 as on file, she has a combined net weekly income (employment and trust income) of $2,568.00.   She is entitled to a modest discretionary annual bonus, and, in fact, she received $5,000.00 in January of this year.   In addition, she has an interest in a trust established by her grandfather more than ten years ago, from which she receives between $20,000.00 and $22,000.00 annually, payable in quarterly installments.   She maintains health insurance through her employment, and the husband is currently covered by that policy.

The husband is 52 years old and suffers from Addison's Disease, for which he takes daily cortisone.   The husband told the court that he could live a normal life if the disease is “properly controlled,” and he also said that he wears a “medic alert” bracelet.   He has also suffered from depression since 2002 for which condition he also takes medication.   The husband has taken about three years worth of college courses, but he does not have a degree.   For some time after leaving school, he drove a delivery truck.   He has been self-employed as an insurance salesman, and as a financial advisor at Weston Wealth Strategies, LLC since 2002/2003.   Despite his illness, the evidence supports a finding that he has demonstrated an ability to generate significant income (Exhibits # 2 through # 7).

The principal assets of the parties include the former marital residence at 15 Old Rock Road, Weston, which they purchased in 2000 for approximately $567,000.00 in part with the proceeds from the sale of their previous home.   The residence was extensively renovated in 2006/2007.   Since the date of separation, the wife has maintained the property, including repairs necessitated by a damage from a tornado and ice dams, without any financial contribution by the husband.   At trial, she testified that the mortgage is two months in arrears.   There is a dispute as to the value of the home.   The wife believes that it has a fair market value of $800,000.00, while according to the husband's financial affidavit, it is worth $850,000.00.   There is currently a first mortgage to Chase in the amount of $877,922.00 and a Heloc to PNC in the amount of $87,962.00, for a total indebtedness of $965,884.00.   In either event, there is a likely to be a sizeable deficiency.

Each party has some retirement plan.   In addition, the parties had an investment account which they told the court that have already divided, although neither party disclosed this on their financial affidavits.¹  They also told the court that they had assumed responsibility for their respective individual debts.   The wife testified that she brought to the marriage approximately $40,000.00 to $60,000.00 in assets, while the husband brought approximately $20,000.00.   The husband disputed this figure, and testified that he brought cash and a § 401(k) to the marriage for a total of between $56,000.00 and $59,000.00.

As to the cause of the breakdown, the evidence suggests that the parties developed different interests and drifted apart over time.   The wife admitted to a brief affair in 2008, however, although the husband blames the wife's infidelity, the court does not find this to be the cause for the breakdown, merely the symptom of a failed marriage.   In fact, the husband had asked the wife for a divorce as early as 2005.   Although counseling was tried at the request of the wife, it was discontinued after one year.   The wife testified that each had a strong temper, and that she feared setting her husband off.   She also told the court that there were religious differences.

The court heard the parties over the course of three days, ending with final argument on February 25, 2011.   The court allowed the attorney for the wife one week to review the affidavit of attorneys fees submitted by the husband at trial, after which time the pleadings were closed.

FINDINGS

The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes §§ 46b–40, 46b–51, 46b–62, 46b–63, 46b–81, and 46b–82, 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 both parties have contributed to said breakdown.

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 throughout the marriage, until their separation, both parties each made significant contributions to the acquisition, maintenance, and preservation of the family assets, including the real estate.

6. 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, education, earnings, needs, and work experience of the respective parties, in light of 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).

7. That the home furnishings and personal property have been divided by the parties by way of a Stipulation (# 120.00) dated February 25, 2011.

8. That the court may order that life insurance or other security be maintained to secure the financial orders of the court.  General Statutes § 46b–82.

9. That according to her financial affidavit, the net income of the wife is $2,568.00 per week;  and that according to his financial affidavit, the net income of the husband is $612.00 per week.

10. That neither party has ample liquid assets, aside from retirement assets, so as to justify an award of attorneys fees.

11. That “the power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage ․ These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute.”  Porter v. Porter, 61 Conn.App. 791, 797 (2001).

12. That the fair market value of the real property located at 15 Old Rock Road, Weston, Connecticut is $800,000.00;  that the encumbrances thereon are in excess of $950,000.00, leaving a deficiency of in excess of$ 150,000.00;  that in her claims for relief, the wife has agreed to assume responsibility for said deficiency;  and that the court has taken same into account in entering its financial orders, including its award of the real property to the wife and alimony to the husband.

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. Commencing April 1, 2011, and monthly thereafter, the wife shall pay to the husband the sum of $2,750.00 as and for periodic alimony, until the death of either party, the remarriage of the husband, the entry into a civil union by the husband, or March 31, 2014, 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.

3. The wife shall promptly notify her employer as to the change of marital status and shall cooperate with the husband in obtaining continuation health insurance coverage as provided by state and federal law.   The husband shall be responsible for the payment of any premiums due for such coverage.

4. As to the jointly-owned real estate at 15 Old Rock Road, Weston, Connecticut, within thirty (30) days from the date hereof, the husband shall convey his interest therein to the real property 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.   The court will reserve jurisdiction regarding the execution of this provision.

5. Personal property shall be divided as follows:

A. The home furnishings and personal property have been divided by the parties by way of a Stipulation (# 120.00) dated February 25, 2011, as on file, which the court hereby approves and incorporates herein as “Schedule A.” *

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 husband drives a 1998 Mercedes ML 320, and the wife drives a 2010 BMW X3.

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. The wife shall be entitled to retain the following items free and clear of any claims by the husband:

1.  Her clothing and personal effects, including watches, rings, and other jewelry;  and

2.  Her interest as a residuary beneficiary in the Morgan P. Gilbert Irrevocable Trust.

E. The husband shall be entitled to retain the following items free and clear of any claims by the wife:

1.  His clothing and personal effects, including watches, rings, and other jewelry;

2.  Security deposit for rental unit;

3.  Any outstanding retainer balance with his lawyer(s);  and

4.  His interest in Weston Wealth Strategies, LLC.

F. Within two (2) weeks from the date of this order, the wife shall transfer/endorse to the husband, the state and federal income tax refunds for the year 2009.

6. The Retirement Assets shall be divided as follows:

A. As to the Merrill Lynch § 401(k) Plan:  Effective as of date of this decree, the then balance of the Merrill Lynch § 401(k) Plan(“Plan”) of the wife through her employer, together with any interest and/or additions accrued thereon as of the actual date of distribution, shall be divided by means of a Qualified Domestic Relations Order (“QDRO”) which shall be prepared by the attorney for the wife, or at her direction and at her sole cost, 25% to the husband and 75% to the wife.   The husband and his attorney shall be entitled to any and all information regarding the Plan necessary to the preparation and filing of the QDRO, including, but not limited to prior and current balances and prior account activity.   No withdrawals, distributions, or transfers shall be made regarding the Plan except as consistent with this order.   The Court shall retain jurisdiction to deal with any issues which may arise with regard to the preparation and filing of the QDRO and the division of the Plan.

B. As to the Fidelity Individual Retirement Account:  The wife shall retain her interest in the Fidelity Individual Retirement Account free and clear of any claims by the husband.

C. As to the “Rollover” Individual Retirement Account:  The husband shall retain his interest in his “Rollover” Individual Retirement Account free and clear of any claims by the wife.

7. 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 any deficiency that may result from the sale of the former marital residence at 15 Old Rock Road, Weston, Connecticut.

8. Pursuant to General Statutes § 46b–84(f), as and for security for her alimony obligation hereunder, the wife shall maintain a portion of the existing life insurance in her name in the amount of $250,000.00, and shall name the husband beneficiary thereof so long as she has an obligation to pay alimony under the terms of this decree.

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

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

11. 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. § 35–59A(h).

THE COURT

SHAY, J.

FOOTNOTES

FN1. Accordingly, the court makes no current order and has no further jurisdiction to enter any future order concerning same.  Rathblott v. Rathblott, 79 Conn.App. 812 (2003).*Editor's Note:  Schedule A has not been included with the reported opinion..  FN1. Accordingly, the court makes no current order and has no further jurisdiction to enter any future order concerning same.  Rathblott v. Rathblott, 79 Conn.App. 812 (2003).*Editor's Note:  Schedule A has not been included with the reported opinion.

Shay, Michael E., J.