Charles Elbaum v. Susan L. Elbaum (2011)

SUPPLEMENTAL MEMORANDUM POST–JUDGMENT

The Court acts upon the plaintiff's two motions dated March 17, 2011, one for articulation and the other for clarification, as serving the same purpose regarding the Court's judgment of dissolution, dated March 4, 2011.   The plaintiff has invoked Practice Book § 66–5 which is an appellate procedure that would not be applicable in this particular case since no appeal is pending.   The plaintiff's motions requesting clarification of said Memorandum, dated March 4, 2011 will be addressed herein.

In the titled “Motion For Articulation, P/J” the intent under Paragraph # 2 of the said Memorandum was not to restrict in any way, the disposition that the parties may have agreed to concerning the E–Z Tell investment business and the so-called candy business between either party.   The more credible evidence concerning these two businesses was that they had no ascertainable market value at the time of the trial and that the defendant wife would assign and transfer those businesses to the plaintiff husband.   The Court didn't order such transfer, but certainly the parties between themselves can make that arrangement concerning these two so-called assets in any way they see fit.

The second issue raised in the plaintiff's “Motion For Articulation” addresses the expenses that may have been incurred during the defendant's exclusive possession of the marital home at 330 Main Street–South in the town of Bridgewater.   The Court relied on the respective financial affidavits of both parties and the general testimony concerning the house and the plaintiff's relationship to that house to include its original construction.   In order to balance the equities between the parties, the Court found that the said marital home should be transferred to the plaintiff with full understanding that there was a dispute as to the actual equity balance remaining in the said premises.   The plaintiff's financial affidavit indicated an equity amount of approximately $183,000.   The defendant's position on her affidavit showed an equity position of $344,000.   There was no clear, probative evidence as to what that true equity balance would be.   The Court operates under the general principles of equity that “equity regards that as done which ought to be done.”   2 J. Pomeroy, Equity Jurisprudence (5th Ed.2002) § 363 et seq.

The Court awarded the said marital home to the plaintiff in spite of the defendant's prior use and occupancy and unpaid expenses associated with it.   The Court found that equity demanded that the plaintiff absorb whatever unpaid balances may have been incurred during that approximate ten-month period of occupancy by the defendant.   The Court recognized that there was some disparity between the alleged net property values, but in the interest of final termination of all relationships, financial and otherwise between these two parties, the plaintiff was in a better position to absorb all costs and expenses relating to the said property “both past and present.”

The Court now turns to the second motion filed by the plaintiff titled “Motion For Clarification, P/J.” The Court will continue to treat this as a clarification of the said memorandum.

The issue of alimony awarded to the defendant was based on findings and more credible evidence relating to the respective financial affidavits and the general testimony of the earning capacities and histories of the respective parties.   The defendant, in effect, was unemployed as of the date of her financial affidavit of January 21, 2011 and as of the decree, with passive weekly rental income in the amount of $342.00.   The Court based its alimony conclusion on the fact that her potential earning capacity is of a minimal nature and therefore she needs the protection of alimony for a period of time unless there is some substantial change in her economic position.   The passive income is considered de minimus and after a twenty-one-year marriage, the Court finds that equity rests on the side of the defendant wife.   The plaintiff is approaching the age of fifty-six (56) and has a much stronger earning capacity and potential as a self-employed carpenter with definite skills.   By being awarded the main substantial marital asset, namely the marital home, he should provide some spousal support for a period of time to the defendant.   The fact that they were jointly able to successfully run a carpentry business in which he did the field work and she ran the business side of the operation is entitled to consideration.   Therefore, the amount of $6,000 per year ($500.00 per month) is found to be necessary to supplement the defendant's minimal income that is reflected at this time.

The child support issue falls under the same finding in that the youngest child Robert, who will turn eighteen in June 15, 2011 is going to be graduating from high school and the Court found the support obligation from the defendant to the plaintiff should be minimal for the remaining period of time.   The Court does conclude that joint legal custody should be awarded to both parents with residential custody of the said son to the plaintiff-father.   The earning potential of both parties is based on various intangibles that are difficult to measure at any given time, but the earning potential certainly favors the plaintiff who is still physically able to generate income for his benefit as opposed to the defendant who has limited qualifications and will be required to work in the lower economic brackets for any gainful employment.   The child support amount of $21.00 per week is based on a de minimus of income for the defendant and is of a relatively short duration until June 2011.   The child support guideline worksheet (# 141) was used by the Court.

All orders and terms of the Judgment remain in full force and effect.

BY THE COURT

Roche, J.

Roche, Vincent E., J.