Christopher Holmes v. Amy Holmes (2011)

MEMORANDUM OF DECISION

The plaintiff, who was a resident of Old Saybrook, Connecticut, initiated this action for dissolution of marriage with a complaint that was returned to the court on February 23, 2010.   At the time, the defendant was a resident of Old Saybrook, 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 May 24, 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 and the defendant whose maiden name was Green were married on August 16, 1997 at Old Saybrook, 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 have been born to the wife since the date of the marriage, two children;  namely, Matthew Holmes born December 8, 1998 and Molly Holmes born July 2, 2000.   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. The parties had numerous pendente lite motions and court interventions regarding issues of access to the children, personal property, fine tuning drop offs and pickups and who may be present during access times, and the introduction of significant others.

7. With the assistance of a skilled and diligent Guardian ad litem, the parties entered into a parental responsibility plan dated April 21, 2011 granting joint custody with primary residence in the mother.   The father is to enjoy access with the children every other weekend from 6:45 p.m. until Sunday at 7 p.m. and one dinner per week on Wednesday plus alternating holidays and vacations.

8. The cause of the dissolution is found to be mutual.

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 separated since February 2010 with the husband vacating the marital residence.

11. There presently exists as marital assets the wife's vehicle worth approximately $2,400, the wife's bank accounts valued at approximately $600, the husband's vehicle with negative equity of approximately $1,500, the husband's furniture valued at approximately $3,000, and the husband's 401(k) plan (all marital), valued at $49,000 but subject to a $15,000 loan which he took upon the separation of the parties for bills, living expenses and furniture for a new home.

12. The debt of the parties includes a bill to the Guardian ad litem in the amount of $2,125, the wife's credit card debt in the amount of $11,000, the husband's credit card debt in the amount of $7,600 plus his $15,000 401(k) plan loan.

13. The husband is now living with his fiancée and presumably purchased jewelry for her which is shown as a debt on his financial affidavit.   He works very long hours and is either unable or unwilling to spend significant periods of time with his children and with his stepchildren all of whom he claims that he loves dearly.

14. The husband is employed as a manager of a rental facility earning $827 per week gross.   The wife claimed, but did not prove, that he has additional income and or bonuses from his employment.

15. The wife is a school bus driver earning $340 per week gross.   The wife has always been the primary caregiver for the children.   Presently, she has the children all of the time except for two 24–hour visits per month and four dinners per month when the husband has them.   As a result, it is not reasonable to impute any additional earning capacity to the wife at this time.   Should her financial circumstances change or if she should successfully obtain child support for her other children, not issue of this marriage, that could be considered a substantial change in circumstances justifying a modification of child support or alimony.

16. The wife is 36 years old and the husband is 39 years old and both are in good health.

17. The wife obtained the 2009 tax refund in the approximate amount of $5,400 and kept it for herself.   The wife claimed both children for the dependency tax exemption on her individual tax return for 2010, notwithstanding the fact that the husband paid his court-ordered child support consistently.

18. 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.

19. The child support guidelines worksheet calls for the husband to pay child support of $176 per week plus 42% of any unreimbursed medical expenses.

20. All personal property has been divided to the mutual satisfaction of the parties but for a chainsaw that the husband requested.   The wife did not object.

21. While the husband argued that the income in “his family” is less than the income of “her family” after the payment of child support, the court recognizes that “her family” has three people to support full time and that his expenses associated with his children are minimal.

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).

General Statutes § 46b–81(a) provides in relevant part:  “At the time of ․ dissolving a marriage ․ the Superior Court may assign to either the husband or wife all or any part of the estate of the other.”

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).

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.

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 pursuant to their shared parenting agreement.   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.

2. The husband shall pay child support to the wife in the amount of $176 per week by automatic wage withholding and the parties shall divide any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or work-related day care costs, 42% payable by the husband and 58% payable by the wife.

3. The husband shall pay alimony to the wife in the amount of $100 per week for five years by automatic wage withholding.   Said alimony will terminate upon the earlier of five years, the death of either, or the wife's co-habitation, remarriage or civil union.   It is modifiable as to amount only.

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

4. The husband shall maintain medical and dental coverage for the minor children as available through his employment at a reasonable expense.

5. The husband shall retain his Hyundai vehicle and the chain saw.   The wife shall retain her Ford vehicle.   Each party will be responsible for the maintenance, loans and insurance for their respective vehicles and hold the other harmless for any expenses associated therewith.

6. The husband shall transfer to the wife 50% of the net value of his 401(k) plan of approximately $33,000, taking into account the $15,000 loan, valued as of the date of dissolution and adjusted for any gains or losses, including dividends payable, to the date the benefit is segregated for the husband.   The death of either the husband or the wife prior to receipt of his or her benefit shall have no effect on the benefit of the other.   The division of the benefit shall be done by way of a qualified domestic relations order (QDRO) if required and the cost of the QDRO shall be shared equally by both parties.

7. Each party will pay their respective debts on their financial affidavits including the husband repaying the 401(k) loan.

8. Each shall keep their own bank accounts.

9. Each party will pay 50% of the Guardian ad litem fees which the court finds to be reasonable and in the sum of $2,125 at the rate of $20 per week commencing July 1, 2011.

10. Both parties will maintain any and all life insurance policies naming the children as equal irrevocable beneficiaries until the youngest child reaches the age of 23.

11. In recognition of the fact that the wife took both tax dependency exemptions for

2010, the husband shall be entitled to both tax dependency exemptions for 2011.   Thereafter, each parent will be entitled to one tax dependency exemption until there is only one available and then the parties will alternate the tax dependency exemption with the husband taking the odd year and the wife taking the even year.

12 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) 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.

14. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.