Janet Condon v. Edward Condon (2011)

MEMORANDUM OF DECISION

This is an action for dissolution of marriage which was tried on non-consecutive days beginning on February 1, 2011.   Final argument took place on April 13, 2011.   The parties were both represented by experienced attorneys.   The court has carefully considered all of the evidence, statutory criteria, and common law pertaining to dissolution of marriage, alimony, assignment of interest in the marital estate, health insurance, life insurance, debts, taxes and attorneys fees, as well as all other issues about which the court will enter orders.

The plaintiff, Janet Condon, whose birth name was Terenzi, married the defendant, Edward Condon, on June 23, 1990.   The court has jurisdiction over this matter because both parties have lived in Connecticut for at least one year prior to bringing this action.   Neither party has received any state or local financial assistance.

The parties have two children of the marriage.   Chelsea, age 18, was born on May 8, 1992.   She is a freshman at Southern Connecticut State University.   Caitlin, age 16, was born on September 13, 1994.   She is a junior in high school.

The plaintiff is 49 years old.   She is an intelligent, well-spoken woman who received a BA degree in 2005.   She is in good physical health but suffers from an emotional condition arising from her former employment with the United States Postal Service (“USPS”).   As a result, she receives a USPS disability pension which pays her $358 per week net ($375 per week gross).   She currently works for the New Hartford Board of Education as an administrative assistant to the Superintendent.   She has net weekly income of $721 ($935 gross).

The defendant is 58 years of age.   He is also intelligent and well-spoken, and has an associates degree.   He is in apparent good health but is being followed for an enlarged prostate as well as blurred vision.   He works full-time for the United States Postal Service where he earns net weekly income of $1,121 ($1,549 gross).

There was very little testimony concerning the cause of the breakdown of the marriage.

The parties had grown apart over the years so that there was very little intimacy left in early 2009 when the plaintiff told the defendant that she no longer loved him, and wanted a divorce.   He says that he did not want to get a divorce but complied with the plaintiff's wishes by moving out of the marital home.

The younger child, Caitlin, lives with the plaintiff in the former marital residence as does the older daughter Chelsea when she is not at school.   The parties agree that this arrangement should continue and that the parties should share joint legal custody of Caitlin.   There is no doubt that the parties would have provided support to their two daughters for higher education if the family were intact.

The parties jointly own an 8–room colonial residence at 20 Red Clover Road, New Hartford, Connecticut which served as the marital residence since they bought it in May 1998.   Before the parties separated, they refinanced the property in the plaintiff's sole name.   The current market value of the property is approximately $450,000.   The mortgage has a balance of $255,234.   The parties agree that the property should be sold as soon as possible.   The plaintiff asks that she be given credit for the payments she has made toward the mortgage principal (approximately $6,000), taxes (approximately $13,000), and household repairs and maintenance (approximately $6,000) since the defendant left the home in July 2009.   She asks that the net proceeds be split 60% to her and 40% to the defendant.   The defendant asks that he be given credit for a $5,000 payment made to Webster Bank and for approximately $30,000 in payments made to various credit cards at the time of the refinancing.   The defendant testified that he was unaware that the plaintiff had incurred these charges.   The defendant asks that the net proceeds be split equally.

The evidence for credits to either party is unconvincing.   Although it is true that the plaintiff has paid a majority of the mortgage, taxes and maintenance of the house since the separation, the defendant offered evidence that he has contributed toward those expenses as well.   Further, the defendant has not had the use of the marital home and has incurred his own rental expense once he accepted the plaintiff's desire for a divorce and moved out.   For these reasons, the plaintiff's claim for a credit is weak.   The same is true of the defendant's credit claims.   It is true that a significant portion of the credit card charges paid by the refinancing were on account of purchases made by the plaintiff for herself.   But, charges were also made for family needs.   Furthermore, there was no evidence that the plaintiff's personal charges were frivolous or extravagant.   In sum, the credits claimed by both parties are difficult to quantify and are offsetting to the extent they can be determined.

The plaintiff's claim for an unequal share of the net proceeds is rejected.   Both parties contributed to the purchase and maintenance of the home.   Having weighed all of the factors to be considered in dividing marital assets, I can see no reason why one party should receive more of the net proceeds than the other.

There is one expense which I feel the defendant should share.   Caitlin was able to go to Europe for eleven days with her history class.   The parties shared the initial deposit of $200, but the plaintiff paid the balance of $3,351 without contribution from the defendant.   The defendant should reimburse the plaintiff one-half of that sum.

The marital home is fully furnished with personal property, most of which was accumulated during the marriage.   When the defendant left the marital home he moved to a small apartment and removed some personal property.   The parties have submitted to the court a signed stipulation relative to personal property which will be incorporated as an order of the court.

The parties have deferred compensation plans, the present value of which is a major issue in the case.   The plaintiff has the USPS disability pension as well a pension with New Hartford.   The defendant has a USPS pension.   The parties agree that the marital portions of the plans should be shared equally but disagree on valuations and methods of division.   For this purpose, I am persuaded that the plaintiff's disability pension is the functional equivalent of a retirement pension which is in pay status.

Each side presented an expert to offer opinions on these topics.   Both experts were impressive.   The expert offered by the plaintiff, Sheldon Wishnick, is an actuary with many years of experience in various areas of actuarial science.   The expert offered by the defendant, Timothy C. Voit, is a financial analyst, not an actuary, who has many years of experience, a large portion of which has been in the valuation of government pension plans.   They both analyzed the deferred compensation plans of both parties and arrived at valuations which were then subjected to a marriage coverture adjustment.   They each proposed a method to arrive at an equal sharing of the marital shares.

Mr. Wishnick valued the coverture portion of the plaintiff's USPS disability pension at $279,410.   Because 100% of the plaintiff's New Hartford pension has accrued during the marriage, Mr. Wishnick used the entire value of $10,511 for his calculations.   Mr. Wishnick valued the coverture portion of the defendant's USPS pension at $580,281.

Mr. Voit valued the coverture portion of the plaintiff's USPS disability pension at $297,038.15.   He valued 100% of the plaintiff's New Hartford pension at $11,382.50.   Mr. Voit valued the coverture portion of the defendant's USPS pension at $445,121.75.

There are several reasons why the experts arrived at different values, the three most important being the interest rate used to discount to present value, the life expectancy of the parties, and the age of retirement used for the defendant.   1) Mr. Wishnick used an extremely conservative interest rate of 4.42% based upon the average U.S. treasury bond rates in December 2010.   Mr. Voit used 5% because he felt that the extremely low rates of December 2010 were not sustainable and were already averaging almost 5% at the time of his testimony.   I found Mr. Voit's analysis to be more convincing and realistic in the long run.   2) Mr. Wishnick used a mortality table analysis which is apparently used in the insurance industry which considers the probability of dying each month until it reaches zero.   Mr. Voit used the more familiar method of relying upon life expectancy tables which are broken down by sex and race.   Again, I found that Mr. Voit's analysis was more credible.   3) Finally, Mr. Wishnick assumed immediate retirement by the defendant because he is eligible to retire now.   The defendant's testimony was that he would retire at age 60 and his testimony is found to be credible.   Mr. Voit used age 60 as the age of his retirement.   4) Because I agree with Mr. Voit on the interest rate, life expectancy, and retirement age issues, I conclude that his overall numbers are more accurate.   These numbers will be used to attempt to equalize the coverture shares of the retirement accounts.

Mr. Wishnick and Mr. Voit again disagree on the best way to do the equalization.   The task of dividing the USPS pensions is complicated by the fact that federal law does not permit the USPS pensions to be divided into separate funds by a Qualified Domestic Relations Order as is customarily done with private pensions.   So, with pensions of this sort, the court can issue a “Court Order Acceptable for Processing” (COAP) which will allow the monthly pension benefits to be divided as they are received.

Mr. Wishnick and the plaintiff propose that a COAP be issued ordering that the plaintiff receive one-half of the coverture share of the defendant's USPS pension benefits as they are received, that the defendant receive one-half of the coverture share of the plaintiff's USPS pension benefits as they are received, and that the defendant receive one-half of the New Hartford pension benefits as they are received.

Mr. Voit advocates for the offset method under which the coverture shares of the pensions would be offset one another and that the difference be made up with regular payments from the defendant's pension benefits as they are received.   Both methods have their strengths and weaknesses.   I have weighed these strengths and weaknesses and conclude that the offset method is superior, primarily because it involves an almost immediate division without the necessity of waiting until the plaintiff retires.   Using the offset method, the plaintiff will begin receiving a small compensatory payment when the defendant retires at age 60.   In order to account for the probability that the defendant will die first, thereby terminating this compensatory payment, the plaintiff will be given the option of guaranteeing the continuation of payment after the defendant's death through the award of a Former Spouse Survivor Annuity to be paid for equally by the parties.   With the exception of this small payment, the defendant will receive his full pension benefit.   The plaintiff will receive her full pension benefits when she retires, without any reduction.   I find this to be a cleaner and simpler way of handling this difficult issue.

The defendant has a USPS Thrift Savings Plan with a balance of approximately $98,000, all of which accrued during the marriage and which the parties agree should be divided equally.

The plaintiff has life insurance in the amount of $330,000 and the defendant has $250,000.

The parties have two cars:  a 2004 Hyundai driven by the plaintiff, and a 2006 Mazda driven by the defendant.   The parties have submitted a signed stipulation relative to the motor vehicles which will be incorporated as an order of the court.

The court orders the following:

1. The marriage is dissolved on the grounds of irretrievable breakdown.

2. The parties shall have joint legal custody of the minor child Caitlin and the plaintiff shall have residential custody.   The defendant shall have reasonable and flexible parenting time with Caitlin with consideration given to Caitlin's own wishes and schedule, consistent with Caitlin's level of maturity.

3. In accordance with the Child Support Guidelines, the defendant shall pay child support to the plaintiff in the amount of $174 per week until Caitlin turns 18 if she is still in high school at that time, then until she graduates from high school or turns 19.

4. The plaintiff shall maintain both children on her present medical insurance through her employer until each child reaches age 26.   Should the plaintiff be unable to maintain such benefits at reasonable cost, or because of termination of her present employment, then the defendant shall maintain both children on his medical insurance through his employer, provided it can be provided at reasonable cost, until each child reaches age 26.   While he is paying child support, the defendant shall also pay 44% of unreimbursed medical expenses and the plaintiff shall pay 56% of unreimbursed medical expenses.   Once the defendant stops paying child support, the parties shall share unreimbursed medical expenses equally.

5. With respect to Chelsea's first two years of college, the defendant has already obtained a loan in the amount of $14,511 which was used to pay for Chelsea's college expenses in her first year.   The plaintiff shall reciprocate by obtaining a loan in the same amount for Chelsea's sophomore college year expenses.   Thereafter, the parties shall contribute equally to both daughters' college tuition, room and board, and the amount of such obligations shall be determined by the Expected Family Contribution which is determined each year by the college or university following submission of the Free Application for Student Aid. This obligation shall be subject to the limitation imposed by C.G.S. § 46b–56c(f) that an educational support order for any necessary educational expenses, including room, board, dues, tuition, fees, registration and application costs may not exceed the amount charged by The University of Connecticut for a full-time in-state student at the time the student matriculates.

6. The defendant shall pay the plaintiff periodic alimony in the amount of $300 per week from the date of dissolution until the closing date of the sale of the marital residence.   Thereafter, the defendant shall pay the plaintiff alimony in the amount of $1 per year until the defendant's USPS pension is in pay status and the plaintiff reaches age 60.   These orders are premised upon the defendant's retirement from USPS at age 60 and the valuation of the defendant's pension using that retirement date.   In the event that does not occur, and the defendant continues working at USPS past his 60th birthday, this would be considered a significant change of circumstances which would entitle the plaintiff to seek an increase in alimony to compensate her for any loss associated with valuation of the defendant's pension.

7. The parties shall share equally in the defendant's USPS Thrift Savings Plan. This shall be accomplished by a “rollover” of 50% of the value of the fund on the date of transfer into a qualified account to be established by the plaintiff.   If a further court order is necessary to accomplish this result, the court retains jurisdiction to issue a QDRO, the cost of which shall be shared equally by the parties.

8. Each of the parties has a USPS pension, and the plaintiff also has a pension through the New Hartford Board of Education.   The marital coverture portions of all three pensions shall be equalized as follows:  1)The plaintiff share retain all right, title and interest in her USPS pension and her New Hartford pensions, free and clear of any claims of the defendant;  2) The defendant shall retain his USPS pension, free and clear of any claim of the plaintiff, except that 3) the plaintiff is awarded $425.38 per month from the defendant's pension benefits once he retires at age 60.   When COLAs are applied to the defendant's benefits, a proportionate share of the COLA is to be applied to the plaintiff's share.   Upon the defendant's death, the plaintiff, if living, shall continue to receive $425.38 per month pursuant to a Former Spouse Survivor Annuity, the cost of which shall be shared by the parties.   The plaintiff will retain the option to cancel or waive her right to the Former Spouse Survivor Annuity at any time.   The plaintiff must inform the Office of Personnel Management if she remarries prior to age 55, at which time the Former Spouse Survivor Annuity would be terminated.   Attached to this decision and made a part thereof is COAP to be used in effectuating this order.

9. Within 30 days of the date of this order the martial residence shall be listed for sale with a licensed real estate agent.   The parties shall agree on any repairs to be done to ready the house for sale and shall share the cost thereof equally.   The parties shall also agree on the listing agent and on the listing price.   The parties shall confer weekly to discuss whether to reduce the purchase price.   The parties are obligated to accept any offer within 3% of the listing price.   If the parties are unable to agree on any of these points, they shall first be obligated to submit their dispute to non-binding mediation, with a mediator to be selected by the parties, the cost of which shall be shared equally.   The court retains jurisdiction to issue binding orders in the event that mediation is unsuccessful.   Until the house is sold the plaintiff shall have sole occupancy of the marital home and shall remain responsible for the mortgage, taxes, insurance and household expenses other than the agreed-upon repairs necessary to ready the house for sale.   Upon sale of the marital residence, the sale proceeds will be used to first pay all usual and customary expenses of closing and then the mortgage encumbering the property.   The remaining proceeds shall be divided equally between the parties.

10. The defendant shall transfer to the plaintiff all his right, title and interest in and to the 2004 Hyundai Santa Fe presently registered jointly, and the plaintiff shall assume sole ownership of and be responsible for all costs associated with that vehicle, free and clear of any claims of the defendant.   The plaintiff shall transfer to the defendant all her right, title and interest in and to the 2006 Mazda 3, presently registered jointly, and the defendant shall assume sole ownership of and be responsible for all costs associated with that vehicle, free and clear of any claims of the plaintiff.

11. Each party shall retain sole ownership of his or her checking and savings account.

12. The parties shall each retain the personal property currently in his or her possession, except that the defendant shall be allowed to retrieve and retain those household items and other articles of personal property currently in the marital residence and that he identified as items he is requesting on Defendant's Exhibit 15,* which are items that are highlighted and have a checkmark beside them.   All other household items and articles of personal property in the marital residence are to be retained by the plaintiff, except for the fixtures or large kitchen appliances, including the refrigerator, stove, and dishwasher, that are located at the marital residence and which are to be sold with the residence or otherwise disposed of by court order.

13. To assure the performance of the obligations created by these orders, the parties shall maintain life insurance in the amount of $250,000, and shall name each other as primary beneficiaries and their children as secondary beneficiaries, for so long as their obligations continue.

14. Within 30 days of this decision, the defendant shall reimburse the plaintiff $1,708, representing one-half of the cost of Caitlin's educational trip to Europe.

15. The parties shall each be responsible for their own attorneys fees.

16. The parties shall each be responsible for the debts reflected on their own financial affidavits.

17. The parties shall each be entitled to claim one child as a dependent for income tax purposes.   At such time as only one child can be claimed as a dependent, the parties shall alternate years, with the plaintiff claiming the child as dependent in the first year.

18. The name of the plaintiff is restored to Janet A. Terenzi.

BY THE COURT,

John W. Pickard

SCHEDULE A

COURT ORDER AFFECTING RETIREMENT BENEFITS

THIS ORDER is entered pursuant to the Decree of Divorce previously entered by the Court on May 18, 2011;

I. TERMINOLOGY AND DEFINITIONS

In issuing this order, the court has considered the requirements and standard terminology in part 838 of Title 5, Code of Federal Regulations.   The terminology used in the provisions of this order that concern benefits under the Civil Service Retirement System are governed by the standard conventions established in that part.

In addition, the following definitions and information apply:

1.  The Employee is EDWARD J. CORDON

Address:  44 Fuller Road, Barkhamsted, CT 06063

2.  The Former Spouse is JANET A. TERENZI, formerly known as JANET CONDON

Address:  20 Red Clover Road, New Hartford, CT 06057

3.  The Employee EDWARD J. CONDON and the Former Spouse JANET A. TERENZI were married on June 23, 1990.   Dissolution of their marriage was granted on May 18, 2011.

4. The retirement plan addressed by this Order is the Civil Service Retirement System or “CSRS,” which is the retirement system for federal employees described in subchapter III of Chapter 83 of title 5, United States Code.

5. The retirement plan is administered by the United States Office of Personnel Management, the mailing address for which is:

Office of Personnel Management

Retirement and Insurance Group

P.O. Box 17

Washington, DC 20044–0017

and the address at which to direct hand-carried delivery is:

Court-ordered Benefits Section

Allotments Branch

Retirement and Insurance Group

Office of Personnel Management

1900 E Street, N.W.

Washington, DC

II. ORDER AFFECTING EMPLOYEE ANNUITY

Employee EDWARD J. CONDON is (or will be) eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States government.

Former Spouse, JANET A. TERENZI, is entitled to $425.38 per month from Employee EDWARD J. CONDON'S civil service retirement benefits.

When COLAS are applied to Employee EDWARD J. CONDON'S retirement annuity, a proportionate share of the COLA is to be applied to Former Spouse JANET A. TERENZI'S share.

III. ORDER AWARDING FORMER SPOUSE SURVIVOR ANNUITY

Under Section 8341(h)(1) of Title 5, United States Code, Former Spouse JANET A. TERENZI is awarded a Former Spouse Survivor Annuity under the Civil Service Retirement System.   The amount of the former Spouse Survivor Annuity will be equal to $425.38 per month.   The cost providing the Former Spouse Survivor Annuity will be shared equally by the Employee and the Former Spouse by reducing each of their shares of the employee annuity by the amount of one-half of the costs of the Former Spouse Survivor Annuity.

The Former Spouse JANET A. TERENZI retains the option to cancel or waive her right to the Former Spouse Survivor Annuity, thereby not reducing either share of the employee annuity received by the Employer and Former Spouse.

If the Former Spouse elects not to cancel or waive her right to the Former Spouse Survivor Annuity awarded herein, the Former Spouse JANET A. TERENZI must inform the Office of Personnel Management if she remarries prior to age 55, at which time the Former Spouse Survivor Annuity would be terminated.

IV. ORDER REGARDING PAYMENT

The United States Office of Personnel Management is directed to pay Former Spouse's share of Employee's employee annuity directly to Former Spouse, JANET A. TERENZI.

IT IS SO ORDERED this 18th day of May 2011 at Litchfield, Connecticut.

BY THE COURT,

Pickard J.

STIPULATION OF THE PARTIES RELATIVE TO PERSONAL PROPERTY

The parties, acting through counsel, duly authorized, hereby stipulate that they are both asking the Court to enter orders regarding personal property as set forth below:

With respect to Automobiles:

The Husband shall transfer to the Wife all his right, title and interest in and to the 2004 Hyundai Santa Fe presently registered jointly, and the Wife shall assume sole ownership of and be responsible for all costs associated with that vehicle.

The Wife shall transfer to the Husband all her right, title and interest in and to the 2006 Mazda 3 presently registered jointly, and the Husband shall assume sole ownership of and be responsible for all costs associated with that vehicle.

With respect to all other personal property:

The parties shall each retain the personal property currently in his or her possession, except that the Husband shall be allowed to retrieve and retain those household items and other articles of personal property currently in the marital residence that he identified as items he is requesting on Defendant's Exhibit 15, which are the items that are highlighted and have a checkmark beside them.   All other household items and articles of personal property in the marital residence are to be retained by the Wife, except for any fixtures or large kitchen appliances, including the refrigerator, stove, and dishwasher, that are located at the marital residence and which are to be sold with the marital residence or otherwise disposed of by Court order.

Both parties stipulate that they believe that the division of personal property as aforesaid is a fair and equitable division of their personal property.

*Editor's Note:  The referenced Exhibit 15 has not been reproduced.

Pickard, John W., J.