Allison Cappitella v. Mark Cappitella (2011)

MEMORANDUM OF DECISION

This dissolution of marriage action between the plaintiff, Allison Cappitella, and the defendant, Mark Cappitella, came before the court by a writ, summons and complaint returnable to the court on February 9, 2010.   The matter was tried to the court on March 1, 2011.   The plaintiff was represented by Attorney Gerald Kahn, and the defendant was represented by Attorney Kenneth McDonnell.

Both parties submitted claims for relief.   Regarding financial support, the plaintiff seeks child support in the amount of $192 a week, retroactive to September 1, 2010;  sole ownership of the marital residence subject to the first and second mortgagees;  a $10,000 property settlement payable at the rate of $200 a month for fifty months;  sole ownership of her deferred compensation account;  and an order that the defendant be solely responsible for any obligations to the Internal Revenue Service and/or the Connecticut Department of Revenue Service arising out of joint tax returns filed by the parties.

By way of financial orders, the defendant proposes that he pay child support in the amount of $100 per week;  that the plaintiff have sole ownership of the marital home and he have sole ownership of his business interests;  that he receive twenty-seven thousand dollars ($27,000) from the plaintiff's 401k;  and that the parties share equally all taxes and penalties due for past joint tax returns.

I. FINDINGS OF FACT

A. Jurisdictional Findings

The plaintiff and the defendant were married on September 7, 1997 in Upper Saddle River, NJ. The plaintiff has resided continuously in Connecticut for at least twelve months preceding the date of filing the complaint.   The court has jurisdiction over the marriage and the parties.   The parties have four minor children of the marriage:  Melissa—fifteen years old, Kelly—twelve years old, Christopher—ten years old, and Emily—eight years old.¹  The family has not received public assistance.

For the reasons discussed below, the court finds that the marriage between the parties has broken down irretrievably and there is no hope of reconciliation.

In rendering this decision and making the ensuing orders, the court has carefully considered the statutory criteria in General Statutes § 46b–56c as to educational support orders, General Statues § 46b–66a as to the conveyance of real property, General Statutes §§ 46b–81 and 46b–82 regarding the assignment of the marital estate and alimony, respectively, General Statutes § 46b–84 as to support and medical insurance for the minor children, General Statutes § 46b–62 regarding attorneys fees, the case law as it has developed regarding these matters and other relevant federal and state laws regarding the issues that confront the court.   The court has considered the parties' arguments, proposed findings of fact and proposed orders.   Additionally, the court had the opportunity to observe the demeanor of the parties at the time of trial.   There were numerous full exhibits, each of which was examined by the court.

B. Parties

The plaintiff, having been born in April of 1966, is presently forty-five years of age.   She was raised in Upper Saddle River, New Jersey, attended the University of California, Davis as an undergraduate and earned a master's degree in nursing at Yale University.   The plaintiff is employed as a pediatric nurse practitioner at the Wildwood Medical Center in Essex, Connecticut.   She works approximately thirty-three hours per week on a varied work schedule, which incorporates occasional weekends and evenings.   The plaintiff earns approximately $44.00 per hour, or $1,421 per week, which is equivalent to approximately $75,504.00 per year as a part-time employee.   The court finds that the plaintiff's net weekly wage is $1,014.   The plaintiff is in good health.

The defendant is forty-four years old.   He served in the United States Marine Corps for four years, and earned an associate's degree.   He has been self-employed as a puzzle maker since 1997 and, since 1999, has enjoyed a national reputation as a wooden jigsaw puzzle maker.   In December 2004, he and a cousin started an internet marketing business which was quite profitable until the federal regulation of offshore gambling forced its closure in October 2007.   The defendant's adjusted gross income was $98,000, $149,000 and $138,000 in 2007, 2008 and 2009, respectively.²  The defendant currently earns approximately $980 per week, or $51,000 per year.   The court finds that defendant's net weekly wage is $715.   The defendant is generally in good health.

Each of the parties has medical insurance coverage available to him/her through their respective employment.   The minor children receive medical insurance coverage through the group medical plan available to the plaintiff by virtue of her employment.

C. Marital Property

Throughout the marriage, both parties made contributions to the acquisition, maintenance and preservation of the marital assets, including real estate.   The marital estate has a gross value of $110,300 and consists of the following assets owned jointly and/or by the parties individually:

The marital home located at 31 Bogue Lane, Haddam, Connecticut, has a fair market value of $279,000.   There is a first mortgage of $150,000 and a HELOC of $73,000, resulting in a net equity value of $56,000.

The parties have retirement accounts as a consequence of current and prior employment.   The plaintiff has a Nationwide 401K plan with a value of $54,700.   The defendant has a Wachovia IRA with a value of $800.   The plaintiff has bank accounts with a value of $50.   The defendant has bank accounts with a value of $115.   The court accepts the values of these accounts and retirement assets as set forth by the parties on their financial affidavits.

The plaintiff operates a 2002 Ford Explorer, which is valued at $2,000.   The defendant operates a 2001 Ford Expedition with a value of $4,500, and a 2007 Saturn Sky with a value of $12,000.

The parties have no significant short-term liabilities held in their joint names.   The plaintiff has short-term liabilities to O'Donnell Plumbing for $2,100, and credit card debt to Discover, American Express, Wal–Mart, Kohl's, Sears, Mobil Exxon, Shell, Chadwick and Macy's totaling $41,000.   The defendant has short-term liabilities to American Express totaling $7,035, Capital One MasterCard totaling $7,154 and Discover card totaling $3,910.   As a consequence of the failure to report income received from 2005 through 2007, primarily from the internet marketing business, the parties have joint federal income tax obligations for the years 2005 through 2007, including penalties and interest in the amount of $120,000.

The parties have incurred attorneys fees over the course of this action.   The plaintiff has incurred obligations for attorneys fees in the amount of approximately $15,000.   The defendant has incurred obligations for attorneys fees in the amount of approximately $8,105.

Neither party presented the court with any evidence concerning the value of the defendant's business, MGCS Custom Wooden Puzzles.³  The plaintiff's post-trial proposed distribution of assets lists business equipment and art with a value of $25,000, and the defendant's proposed distribution of assets lists the value at $10,000, but neither party valued the business, equipment or art on their financial affidavits, no expert testified and no documentary evidence was presented.⁴

Although the evidence, taken together, provides the underpinning for the reasonable conclusion that the defendant is earning or is capable of earning a certain level of income, it is not a substitute for evidence regarding the value of the business.   Furthermore, there is absolutely no evidence available to assess the value of the business.   As a result, any valuation of the business on this record is improper.⁵  See Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983).   The court finds that there is adequate evidence to impute income from the business to the defendant for the purposes of awarding support.   See Carasso v. Carasso, 80 Conn.App. 299, 304, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004).

D. Causes for the Dissolution of Marriage

The parties met each other in November of 1994, when the defendant was separated from his first wife.   Their first daughter was born a year later in 1995 and the parties married in September of 1997.   Around that same time, the defendant started his internet-based, wooden jigsaw puzzle business.   Throughout the marriage, the plaintiff regularly assisted the defendant in the business, which operated out of the couple's home.⁶  From the start, the parties segregated their financial resources, operated with separate bank accounts and followed a detailed schedule as it related to family expenses.   The plaintiff paid for household expenses and the children's activities.   The parties divided the mortgage and groceries equally.   Each paid for their own automobile and related expenses.   The defendant paid for oil, propane and 53.4% of the electric bill.   When the plaintiff incurred substantial credit card debt four years ago, at the insistence of the defendant, she placed a second mortgage on the marital home and assumed full responsibility for the payments.

The plaintiff describes a marriage that has been dysfunctional for the last five years.   In September of 2009, she discovered that he had commenced a relationship with a girlfriend in Russia almost a year earlier.   While she was shocked at the discovery, his attention had for some time been elsewhere.   He had taken up ballroom dancing, was out three to four nights a week, participated in chat rooms and was critical about her appearance, cooking and housekeeping.   The defendant indicates the marriage broke down from a lack of affection, a messy home ⁷ and a lack of support for his approach to the discipline of the children.   The defendant admits he commenced an affair in late November 2008 after meeting his girlfriend at a Formula One race in Germany.   After the plaintiff filed this action, the defendant moved out of the family residence on February 5, 2011 and has remained out of the residence ever since.

The defendant engaged in deception, betrayal and lies wholly inconsistent with his marriage.

One of the significant stressors toward the end of the marriage (and an issue which received significant attention at trial) involves the parties' IRS obligation, which now totals at least $120,000 including interest and penalties, arising primarily out of the failure of the parties to pay taxes on the defendant's income from the internet marketing business during the years 2005 through 2007.⁸  The enterprise, involving the internet promotion of offshore poker sites, produced substantial income available through an ATM debit card drawn on an offshore bank account on the Isle of Man. The plaintiff asserts that the defendant had exclusive control over the account and that she advised him (1) not to spend all the money, (2) to claim all of it for tax purposes and (3) to set aside one-third of the money for taxes.   Nevertheless, she signed the joint tax returns for the tax years of 2005, 2006 and 2007, which did not claim the income or pay additional taxes.   She contends that her husband assured her he would be responsible for any taxes due and owing.   The defendant asserts that his wife and their children benefitted from the income, which was used for vacations, to pay household expenses and for the maintenance of and improvements to the home, including remodeling, new furnishings and appliances.   The defendant acknowledges that, while he controlled the ATM checking account, neither he nor his wife, who handled bookkeeping for the puzzle business, set aside money to pay income tax because they both enjoyed spending the money and thought the “fat years” would continue.

The plaintiff is challenging her responsibility for the amounts due to the IRS for the 2005, 2006 and 2007 income tax returns, but her request for relief as an “innocent spouse” has been, at least preliminarily, denied.

ORDERS

Based on the foregoing, the court orders the following:

1. The marriage of the parties is dissolved on the basis of an irretrievable breakdown.

2. The defendant will pay to the plaintiff child support in the amount of $200 per week by way of wage garnishment, which is in accordance with the child support guidelines.⁹  In addition, the defendant will pay thirty percent, and the plaintiff seventy percent, of the unreimbursed medical and dental expenses, as provided for in the guidelines.   The definition of a medical and dental expense is to be broadly construed to include, but not be limited to medical, dental, orthodontic, hospitalization, optical, pharmaceutical and psychological and/or psychiatric counseling and/or treatment.

3. The parties shall be individually responsible for their own health insurance.   The plaintiff shall provide and maintain medical insurance on behalf of the minor children for so long as she is able to do so under the terms of her policy.

4. Provided each parent is current on any child support, unreimbursed medical/dental, extracurricular and post-secondary education expenses, as outlined in this decision, each party may claim two minor children for state and federal tax purposes in 2010.   At such time when there is an odd number of eligible children, the parties shall alternate claiming the extra child as a dependent commencing with the plaintiff.

5. The parties shall each maintain life insurance policies with a face value of $200,000 for the benefit of their children for as long as they owe an obligation to support or educate them, provided they can obtain such insurance at reasonable expense.¹⁰

6. Property division of the residence at 31 Bogue Lane, Haddam, Connecticut.   The plaintiff shall be entitled to sole ownership of the former marital residence located at 31 Bogue Lane, Haddam, Connecticut.   The defendant shall transfer to the plaintiff, by quit claim deed, any and all interest he may have in this property within twenty-one days, and the plaintiff shall be solely responsible for the mortgage, taxes and insurance with respect to said property (including, but not limited to, the taxes and home insurance outstanding against said property) and all other costs and expenses for utilities, repairs and maintenance associated with the property.   The plaintiff shall indemnify and hold the defendant harmless from the same.

7. Retirement fund/accounts.   The plaintiff shall retain the Nationwide 401K plan in her name.   The defendant shall retain the Wachovia IRA.

8. The defendant shall be the sole owner of MGCS Custom Wooden Puzzles, its business equipment, serigraphs, oil paintings and other artworks, and the internet marketing business.

9. The plaintiff shall retain her Essex Savings accounts free from any claim by the defendant.   The defendant shall retain his Essex Savings accounts free of any claim by the plaintiff.

10. College education.   The court shall reserve jurisdiction under General Statutes § 46b–56c and make orders with respect to the educational expenses for the children.¹¹

11. The plaintiff shall be the sole owner of the 2002 Ford Explorer.   The defendant shall be the sole owner of the 2001 Ford Expedition.   The parties shall be responsible for all costs and expenses associated with said vehicles, and shall indemnify and hold the other harmless with respect thereto.

12. Remaining personal property.   Although the defendant has removed some household property, the parties have not yet divided all of their personal property.   If they are unable to agree upon the distribution of their personal property, they shall exchange a list of the items that they desire.   Those items on which they do not agree, shall be the subject of the mediation.   The items on which they cannot agree, after the mediation, shall be distributed on an alternating basis.   The plaintiff shall select the first item she desires, then the defendant shall select the item he desires.   This alternating selection shall continue until all items in dispute have been distributed.   This selection process shall occur no later than ninety days from the date of this decision.   The defendant and the plaintiff shall each retain his or her own clothing, jewelry and other personal effects, including items he or she may have received as gifts from the other party.

13. For so long as any party has an child support obligation to the other, the parties shall annually exchange their W–2s, 1099s, K–1s and returns by the fifteenth of February each year, and shall provide each other with their federal tax returns within five days of filing.

14. Each party shall be responsible for their respective attorneys fees, for to order otherwise would undermine these financial orders.

15. Liabilities. Each party shall be responsible for the remaining liabilities listed on their respective financial affidavits and will indemnify and hold the other harmless therefrom, with the exception of the joint 2009 tax liability set forth on the husband's financial affidavit.   The joint 2009 tax liability shall be equally divided by the parties.

16. To the extent that the parties continue to be held jointly liable by the tax authorities for taxes due for past joint tax returns, the parties shall equally pay those joint taxes and all penalties and interest thereon and they each shall reimburse the other for any payments in excess of fifty percent.   However, this order shall not be deemed to interfere with nor to modify any decisions subsequently made by the appropriate tax authorities with respect to the liability of each party for taxes and penalties arising out of past joint returns.   The parties remain free to raise claims and defenses with the appropriate tax authorities.

17. Each party is ordered to sign whatever documents are necessary, and are presented to them, by the other party to effectuate these orders.

These orders are effective immediately.   It is so ordered.

HARRY E. CALMAR, JUDGE

FOOTNOTES

FN1. A parenting plan providing for joint legal custody, primary residence with the mother, was approved and entered as an order of the court on September 27, 2010.   The defendant has a son from a prior marriage for whom he pays child support in the amount of $69 per week..  FN1. A parenting plan providing for joint legal custody, primary residence with the mother, was approved and entered as an order of the court on September 27, 2010.   The defendant has a son from a prior marriage for whom he pays child support in the amount of $69 per week.

FN2. The enterprise, which involved the internet promotion of offshore poker websites, produced gross income for the defendant in the total amount of $181,000 from 2005 through 2007..  FN2. The enterprise, which involved the internet promotion of offshore poker websites, produced gross income for the defendant in the total amount of $181,000 from 2005 through 2007.

FN3. The defendant estimates that if he sold his tools he would recover approximately $10,000..  FN3. The defendant estimates that if he sold his tools he would recover approximately $10,000.

FN4. Both parties in a dissolution proceeding are required to itemize all of their assets in a financial affidavit and to provide the court with the approximate value of each asset.  Practice Book § 25–30.   See also Bornemann v. Bornemann, 245 Conn. 508, 535–36, 752 A.2d 978 (1998) (same)..  FN4. Both parties in a dissolution proceeding are required to itemize all of their assets in a financial affidavit and to provide the court with the approximate value of each asset.  Practice Book § 25–30.   See also Bornemann v. Bornemann, 245 Conn. 508, 535–36, 752 A.2d 978 (1998) (same).

FN5. “When faced with the constraints of incomplete information, a court cannot be faulted for fashioning an award as equitably as possible under the circumstances.”  Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005)..  FN5. “When faced with the constraints of incomplete information, a court cannot be faulted for fashioning an award as equitably as possible under the circumstances.”  Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005).

FN6. The equipment which included laminators, scroll saws, computers, printers and sanders was moved to a warehouse in Essex in October 2010..  FN6. The equipment which included laminators, scroll saws, computers, printers and sanders was moved to a warehouse in Essex in October 2010.

FN7. Pictures of the interior of the home reflect an extraordinary lack of attention to housekeeping on the part of both parties.   The court can only hope, for the benefit of the children, that the situation has been remedied..  FN7. Pictures of the interior of the home reflect an extraordinary lack of attention to housekeeping on the part of both parties.   The court can only hope, for the benefit of the children, that the situation has been remedied.

FN8. The parties liquidated retirement assets and retained a law firm to represent their interests before the IRS and the Connecticut department of revenue services.   For a year or more, the defendant paid the IRS $1,000 a month on an installment plan against the tax obligation, but terminated these payments in January of 2009.   Representation was suspended during the pendency of this action because of conflict of issue concerns..  FN8. The parties liquidated retirement assets and retained a law firm to represent their interests before the IRS and the Connecticut department of revenue services.   For a year or more, the defendant paid the IRS $1,000 a month on an installment plan against the tax obligation, but terminated these payments in January of 2009.   Representation was suspended during the pendency of this action because of conflict of issue concerns.

FN9. Based on a review of the party's financial affidavits, the court finds that the presumptive child support payment from the father to the mother is $200 per week and that the father's and mother's share of unreimbursed medical expenses is thirty percent and seventy percent, respectively..  FN9. Based on a review of the party's financial affidavits, the court finds that the presumptive child support payment from the father to the mother is $200 per week and that the father's and mother's share of unreimbursed medical expenses is thirty percent and seventy percent, respectively.

FN10. The plaintiff has a life insurance policy with a face value of $1.1 million.   During the pendency of this action the defendant had a policy with a $1 million face value on his life, which was canceled after two months following a blood test.   While he testified that he was not confident he was insurable at the time of trial, his revised proposed order # 4 has been adopted by the court..  FN10. The plaintiff has a life insurance policy with a face value of $1.1 million.   During the pendency of this action the defendant had a policy with a $1 million face value on his life, which was canceled after two months following a blood test.   While he testified that he was not confident he was insurable at the time of trial, his revised proposed order # 4 has been adopted by the court.

FN11. The court finds it is more likely than not that the parents would have provided support to the children for higher education or private occupational school if the family were intact.  General Statutes § 46b–56c(c)..  FN11. The court finds it is more likely than not that the parents would have provided support to the children for higher education or private occupational school if the family were intact.  General Statutes § 46b–56c(c).

Calmar, Harry E., J.