Cheryl A. Capoccitti v. James V. Capoccitti (2011)

MEMORANDUM OF DECISION RENDERING JUDGMENT

The Plaintiff (hereafter, sometimes referred to as the Wife) filed a Complaint in this court on July 26, 2010, for dissolution of her marriage to the Defendant (hereafter, sometimes referred to as the Husband).   The Return Date was August 24, 2010.   The Husband appeared through counsel on August 6, 2010.   The Wife sought dissolution of the marriage, primary physical custody of the minor children, joint legal custody, child support, alimony and an equitable division of their property and debts.   The Husband filed a Cross–Complaint on August 6, 2010, seeking dissolution of the marriage, joint legal custody of the minor children with primary physical custody to the Wife, parenting time, and an equitable distribution of the marital property and debts.   After status conferences, pre-trials, mediations, special master's conferences, and pendente lite hearings, none of which were successful, the matter was continued and assigned to this trial court for a limited contested final hearing.

The Wife appeared at trial with counsel who represented her throughout.   The Husband appeared at trial with counsel who represented him throughout.   The hearing commenced April 26, 2011.   It continued on April 27 and concluded on April 28, 2011.

The Wife and Husband each testified.   The Wife called one other witness Michael Riccio, as an expert in sports memorabilia.   The Husband called two other witnesses Vivian Capoccitti, his mother, and Gregory Conte an attorney at law.   Numerous exhibits were introduced by the Plaintiff and the Defendant.

FINDINGS:

After hearing, and a careful review of the credible and relevant evidence offered during the trial, and a review of the judicially noticed court records, the court finds the following:

The Plaintiff resided continuously in the State of Connecticut for at least twelve consecutive months immediately preceding the filing of the Complaint.   She was married to the Defendant by her birth name of Cheryl Ann Stoffan on August 17, 1991, in Bridgeport, Connecticut.   There are two minor children that are issue of the marriage, Cara Lynn Capoccitti, born on January 11, 1996, and Kyle Vincent Capoccitti, born on September 15, 1998.   There is no reasonable hope of reconciliation.   The marriage of the parties has broken down irretrievably.   The State of Connecticut has not contributed any financial assistance for the support or maintenance of either party.   The state of Connecticut did not appear in this case.   The allegations of the Complaint are found to be true.   This court has jurisdiction over the marriage of the parties.

A Guardian ad Litem (Attorney Janis Laliberti) was appointed by the court on November 11, 2010, for the minor children.   Prior to the start of the trial the parties entered into a Parenting Responsibility Plan (hereafter referred to as the Plan) on March 21, 2011.   The Plan was approved as the Final Parenting Plan for the minor children by the court on March 21, 2011.   It addresses legal custody, physical custody, regular parenting access, holidays and vacation time, travel, cooperation and conduct, communication and decision making, and disputes and disagreements.   The Plan shall be incorporated into the Judgment by reference.

The parties have been married to each other for 19 years.   This is the first marriage for each of them.   She is 49 and he is 55 years of age.   She has a Bachelor's degree in Economics, a Master's degree in Economics, and a Master's degree in Management.   Her health is fair.   Since 1997, she has been bothered with recurring stress related ulcers.   She smokes cigarettes and acknowledges that her smoking contributes to the ulcer.   One-half of her stomach was removed in 2009.   She sees a doctor frequently to have it checked.   She sustained a torn left rotor cup and a separated disc in a motor vehicle accident on July 27, 2008.   She was unable to work from July 2008 to September 2008.   A settlement of $24,326 was awarded to her in May 2010.   At her request, it is being held in escrow by her attorney to purportedly cover future medical expenses.   None of the foregoing health issues affect her ability to work.   She is able to work and is gainfully employed.   She has been continuously employed throughout the marriage.   She is employed as an auditor by the Department of Justice–Federal Bureau of Investigation.   Her average net weekly income is $932.   Health insurance is provided for her through her employment.

The Husband has a Bachelor's degree in Criminal Justice.   He discontinued graduate school after completing eight post graduate classes towards a Master's degree in Business Administration.   He does not intend to return to school.   He is in very good health.   He has been gainfully employed during all of the marriage except for a few months in 2003 to 2004.   He is employed as a contract administrator by the Department of Defense.   His average net weekly income is $968.   Health insurance coverage is available to him through his employment.   He is currently covered under the Wife's health insurance plan.

The parties had two children and enjoyed a good marriage for twelve years.   Then, in about 2003, he began making escalating demands upon her for his sexual pleasure.   She felt that his demands were abnormal.   She found them to be repulsive, demeaning and abusive to her.   She told him that she didn't like certain sex acts which she thought were aberrant and she wanted them to stop.   He became increasingly verbally, emotionally and sexually offensive towards her.   She ceased enjoying having marital relations with him.   He displayed anger if she didn't submit to what he wanted.   She yielded to his demands but felt unloved, degraded and used.   They communicated less, grew distant, she tried to avoid any physical contact with him.   In June 2010, they ceased all sexual intimacy.   They continue to live in the same marital residence but now occupy separate bedrooms.   Each suspects the other of having had an affair before the wife filed to dissolve the marriage;  each of them denies having ever had an extramarital affair;  and neither of them proved an extramarital affair by a preponderance of evidence.   The court finds the Husband to be at greater fault for the marital breakdown.

Other than some stocks which the Wife acquired before the marriage and a condominium which the Husband owned when they married, neither party brought any other significant asset into the marriage.   The stocks had a value of about $5,050 when they married and increased in value during the marriage.   They lived in the Husband's condominium for 6 years after they married.   In 1997, he sold it for a net loss of between $7,000 and $8,000.   All of their income (including the profit derived from the sale of Wife's premarital stocks;  severance pay of $30,000 received by the Husband in 2003;  and approximately $71,000, which the Wife withdrew during 2005 to 2010 from her Individual Retirement Plan Account) was deposited into their joint account Money Market Account and/or their joint Sikorsky Federal Credit Union account.   The joint accounts were freely accessed and reasonably utilized by each of them to pay for their vacations, home repairs and improvements, personal and joint household purchases, needs and unreimbursed medical expenses.

The parties jointly purchased the marital home, situated at 29 Beech Tree Hill Road in Shelton, Connecticut in August 1997.   They purchased it for $250,500 with a mortgage of $176,884, accumulated joint funds of $36,000, and a payment of approximately $37,000.   The payment of approximately $37,000 consisted of proceeds in the amount of $10,000 received by the Wife from the sale of her stocks, $17,000 which was gifted to them by the Wife's parents and $10,000 that was gifted to them by the Husband's parents.   The property has a current fair market value of $396,000, a first mortgage balance of $64,707, and a current equity value of $331,129.   Each of the parties contributed to the acquisition of the property, payment of the mortgage, taxes, insurance for the property, its maintenance and its appreciation.   The Wife desires to retain the home as a residence for her and the minor children.

The Husband also jointly owns real property situated at 157 Highland Drive in Monroe, Connecticut.   He co-owns it with his sister Lenore Nagy. It was conveyed to them during the marriage by Warranty Deed from Madeline Turschmann for the consideration of $225,000.   The consideration was in fact provided and paid in full to Madeline Turschmann, by the Husband's mother, Vivian Capoccitti.   The Warranty Deed transferred a Fee Simple interest in the property to the Husband and Lenore Nagy. The Warranty Deed was executed on March 27, 2003 and recorded in the land records of the town of Monroe in volume 1132 at page 36.   Subsequently, on March 28, 2003, the Husband and Lenore Nagy, as Lessors, entered into an Agreement of Use and Occupancy with their mother Vivian Capoccitti, as a Lessee.   Vivian Capoccitti was granted the right to use and occupy the property rent free for as long as she is able to maintain the premises.   Although the Agreement of Use and Occupancy recites that the Lessee, Vivian Capoccitti conveyed 157 Highland Avenue to the Lessors, James Capoccitti and Lenore Nagy on March 28, 2003, there was no such conveyance.   Vivian Capoccitti's right to use and occupy the property was conditioned upon her promise to maintain the premises, pay the mortgage, insurance, utilities, upkeep, real and/or personal property taxes, and to pay any and all taxes associated with the property.   Vivian Capoccitti is alive and occupies the property as her residence.   She is in compliance with all of her obligations under the Agreement of Use and Occupancy.

The Husband contends that his interest in the property is not a marital asset that is subject to division by the court.   The court finds that he was gifted an ownership interest in the property at 157 Highland Avenue by Vivian Capoccitti on March 27, 2003.   His interest vested when the Warranty Deed to him was executed and recorded.   That ownership interest is a marital asset which is subject to division by this court.   The property has a current fair market value of $225,000.   There is no mortgage on the property.   Its current equity value is $225,000.   The dollar value of the Husband's interest in the property is $112,500.

The Wife opened and maintains a Fidelity Investment account with joint marital funds as an investment plan to finance the children's college education.   It has a current value of about $19,400.   The parties agree to distribute any funds that are not used for the children's education and remain in the account after they reach age 23 directly to the children.   The Wife acquired 100 shares of People's Securities in 2002.   They are currently worth $14,800.

The husband is a collector of sports memorabilia.   He values his collection to be worth $4,000.   Michael Riccio, an owner of a sports memorabilia business was called by the wife as an expert witness.   He opined the collection was worth $20,000.   Mr. Riccio never physically inspected or even actually saw any of the items he valued.   He only viewed some photographs of the memorabilia that were provided to him by the Wife. He opined their value based solely upon the price he would market the items for in his store.   The court finds the value attributed to the memorabilia by Michael Riccio to be unreliable and accords it no weight in its decision.

In entering the following decree the court has taken into consideration among other things, the length of the marriage, the causes of the breakdown of the marriage, the age of the parties, their health, skills, employability, amount and sources of income, distribution of the marital assets, their resources, and their respective ability to acquire work and future income.   The court has considered all of the evidence in the light of the statutory factors in Connecticut General Statutes § 46b–81 and § 46b–82 and hereby enters the following orders:

ORDERS

DISSOLUTION OF MARRIAGE:

1. The marriage is hereby dissolved on the ground of irretrievable breakdown.

RESTORATION OF BIRTH NAME:

2. The Wife has elected to have her birth name of Cheryl Ann Stoffan restored and is therefore restored her birth name of Cheryl Ann Stoffan.

ALIMONY

3. The Wife is awarded periodic alimony in the amount of one ($1.00) dollar per year for a term of six (6) years.   The term of the alimony is non modifiable.   The amount of the alimony may be modified pursuant to Connecticut General Statute § 46b–86(b).  Alimony to the Wife shall terminate upon the death of either party, remarriage of the Wife, or pursuant to Connecticut General Statute § 46b–86(b), whichever occurs first.

4. The Husband is awarded periodic alimony in the amount of one ($1.00) dollar per year for a term of six (6) years.   The term of the alimony is non modifiable.   The amount of the alimony may be modified pursuant to Connecticut General Statute § 46b–86(b).  Alimony to the Husband shall terminate upon the death of either party, remarriage of the Husband, or pursuant to Connecticut General Statute § 46b–86(b), whichever occurs first.

CUSTODY AND PARENTING TIME:

5. The parties have agreed to share joint legal and physical custody of the two minor children.   The Parenting Agreement, entered into by the parties and approved by the Court on March 21, 2011, shall be incorporated by reference into the Judgment.

CHILD SUPPORT:

6. Neither party is required to pay support to the other for the two minor children.   This is a deviation from the child support guidelines.   The child support guidelines call for the Husband to pay the presumptive amount of $224 per week if the Wife is the children's primary physical custodian or for the Wife to pay the presumptive amount of $233 per week if the Husband is the children's primary physical custodian.   Deviation from the child support guidelines is warranted based upon the parties' agreement to share joint legal and physical custody of the two minor children, coordination of the family's total support and the best interest of the minor children.

HEALTH INSURANCE:

7. The Wife shall provide and maintain such medical, dental, and vision health insurance as may be available to her, including through her employment at a reasonable cost not to exceed five percent of her net weekly income for the benefit of the children until the age of 18.   If a child attains age 18 and is a full-time student, she shall maintain the child's medical, dental and vision health insurance until the child attains age 23, marries, deceases, becomes employed full-time, or is no longer eligible to be carried by her at a reasonable cost.

8. In the event that medical, dental, and vision health insurance for the benefit of the children is not available to the Wife through her employment at a reasonable cost then, in that event, the Husband shall maintain such insurance as may be available to him through his employment at a reasonable cost, for the benefit of the children, until they reach the age of 18, or the age of 23, if the child is a full-time student.

9. The parties shall share equally the portion of the medical insurance premium incurred by either of them to provide and maintain medical, dental, and vision health insurance coverage for the children and is attributable to the children.

10. Any uninsured or un-reimbursed medical, dental, vision or other health care expense, incurred for a minor child shall be paid fifty (50%) percent by the Wife and fifty (50%) percent by the Husband.

11. Neither party shall contract for any elective surgery or incur expenses for nonmedical healing arts for a child without consulting with and obtaining the consent of the other, except in the case of an emergency.   Consent to such treatment shall not be unreasonably withheld.

12. The Wife shall be responsible for her own medical, dental, and vision health insurance.

13. The Husband shall be responsible for his own medical, dental, and vision health insurance.

SCHOOL SUPPLIES, EXTRA CURRICULAR ACTIVITIES AND LUNCHES:

14. The parties shall share equally the cost of all of the children's school supplies and extra-curricular activities, including necessary equipment, travel, meals and lodging expenses for the child which they mutually agree the child will participate;  paid fifty (50%) percent by the Wife and fifty (50%) percent by the Husband.

15. The Wife shall be responsible for providing the children's school lunches in the odd-numbered months and the Husband shall be responsible for providing the children's school lunches in the even-numbered months.

POST SECONDARY EDUCATIONAL SUPPORT:

16. The parties shall maintain and use the funds previously set aside in the Fidelity Investment college accounts for the children prior to either party incurring liability for post majority educational support.

17. The court shall retain jurisdiction pursuant to Connecticut General Statutes § 46b–56c regarding any future orders for the post secondary education of the parties' three children under the age of 23.

LIFE INSURANCE:

18. The wife shall maintain her existing life insurance policy designating the Husband as a beneficiary of the policy for at least $200,000 of its value for as long as she has an obligation to pay alimony to the Husband.   She shall provide proof to the Husband yearly, upon request, of the continued existence of the policy and the amount of insurance.

19. The Husband shall maintain his existing life insurance policy designating the Wife as a beneficiary of the policy for at least $200,000 of its value for as long as he has an obligation to pay alimony to the Wife. He shall provide proof to the Wife yearly, upon request, of the continued existence of the policy and the amount of insurance.

20. The Wife shall also maintain her existing life insurance policy for the benefit of the minor children.   She shall designate the minor children as beneficiaries of the policy in an amount of at least $200,000 for as long as she has an obligation to contribute to the support of the minor children or to their post secondary education until the age of 23.   She shall provide proof to the Husband yearly, upon request, of the continued existence of the policy and the amount of insurance.

21. The Husband shall also maintain his existing life insurance policy for the benefit of the minor children.   He shall designate the minor children as beneficiaries of the policy in an amount of at least $200,000 for as long as he has an obligation to contribute to the support of the minor children or to their post secondary education until the age of 23.   He shall provide proof to the Wife yearly, upon request, of the continued existence of the policy and the amount of insurance.

TAX DEPENDENCY EXEMPTION:

22. For so long as there are two children eligible to be claimed as a deduction, exemption or for credit on a federal income tax return, the Wife shall be entitled to claim the child Kyle Capoccitti and the Husband shall be entitled to claim the child Cara Capoccitti.   When there is only one child eligible to be claimed as a tax deduction, exemption or credit, the parties shall alternate claiming the child with the Wife entitled to claim the child in the odd-numbered tax year, and the Husband entitled to claim the child in the even-numbered tax year.

TAX REFUND OR LIABILITY:

23. The parties shall share equally in any refund or be equally responsible for the payment of any tax liability due on their jointly filed federal and/or state income tax return for the tax year 2010.

BANK ACCOUNTS:

24. The Wife shall retain all monies deposited in the checking and savings account with Sikorsky Federal Credit Union and Federal Justice Credit Union in her individual name and listed on her financial affidavit, dated and filed with the court on April 26, 2011, free and clear of any claim by the Husband.

25. The parties shall evenly divide the monies remaining in the joint checking and savings account with the Sikorsky Federal Credit Union as listed on their respective financial affidavits, dated and filed with the court on April 26, 2011.

AUTOMOBILES:

26. The Wife shall retain and have sole possession and ownership of the 2008 Honda Accord automobile, free and clear of any claim by the Husband.   She shall be solely responsible for paying the outstanding $7,000 loan balance and all expenses associated with the vehicle.   She shall indemnify and hold him harmless for any liability or expense associated with the use, maintenance, and ownership of the vehicle.   He shall execute any and all documents required to confirm her ownership of the vehicle, if necessary.

27. The Husband shall retain and have sole possession and ownership of the 1999 Ford Explorer automobile, free and clear of any claim by the Wife. He shall be solely responsible for paying any outstanding loan balance and all expenses associated with the vehicle.   He shall indemnify and hold her harmless for any liability or expense associated with his use, maintenance, and ownership of the vehicle.   She shall execute any and all documents required to confirm his ownership of the vehicle, if necessary.

RETIREMENT AND IRA ACCOUNTS:

28. The Wife shall retain her Thrift Savings Plan (TSP FERS) valued at $82,225 and her Sikorsky IRA account valued at $236,320, free and clear of any claim by the Husband.

29. The Wife shall retain her UTC single life annuity with a monthly pension payment of $2,769.96, commencing September 27, 2023, free and clear of any claim by the Husband.

30. The Husband shall retain his Thrift Savings Plan valued at $83,426 and his UTC Savings Plan valued at $193,159, free and clear of any claim by the Wife.

31. The Husband shall retain his UTC single life annuity with a monthly pension payment of $1,590, commencing April 1, 2021, free and clear of any claim by the Wife.

PERSONAL PROPERTY

32. The Wife shall divide equally the 100 shares of UTC Peoples Securities stocks acquired in 2002 and listed on her financial affidavit, dated and filed with the court on April 26, 2011.

33. The insurance dividend check in the approximate amount of $350 shall be divided equally between the parties.

34. The insurance check in the approximate amount of $500 for the fallen tree may be retained by the Husband as he has already cut up and removed the tree from the yard.

35. The $5,000 check relating to a homeowner's insurance claim filed by the parties may be retained by the Wife. She shall use the proceeds to repair damage to the marital residence.   If any amount remains after repairs have been made, the Wife may retain the balance free and clear of any claim by the Husband.

36. The Husband may retain his sports memorabilia collection and his 2011 Yankee season tickets, free and clear of any claim by the Wife.

37. The Wife may retain the proceeds of $24,326 from her personal injury settlement and the proceeds of any potential settlement arising from any pending underinsured motorist claim that she may have.

38. The Husband shall be entitled to retain the following items of personal property in the marital home:  (a) the pieces of furniture specifically given to them by the Husband's mother, (b) the living room furniture, including the coffee/sofa and end tables, bar, pictures and crystal Congressional ash tray, (c) the credenza in the upstairs hallway, (d) the Husband's CDs and DVDs (e) the pictures currently located in the basement, (f) Cara's old furniture that is now located in the basement and (g) the Husband's personal items such as clothing and tools.

39. The wife shall be entitled to retain and have sole possession and ownership of all of the remaining household furniture, furnishings, appliances, tools and equipment located at the marital property.

40. Any other disclosed asset shall remain the property of the party who now has the asset in their possession free of any claim by the other.

MARITAL RESIDENCE:

41. The Wife shall retain her interest the marital home, situated at 29 Beech Tree Hill Road in Shelton, Connecticut, free and clear of any claim by the Husband.

42. The Wife shall be responsible for payment of the mortgage, taxes, insurance, utilities, capital improvements, maintenance, and all other expenses and liabilities associated with the property and shall indemnify and hold the Husband harmless.

43. The Husband shall transfer to the Wife by way of a quitclaim deed all of his rights, title and interest in the marital residence.

44. The Wife shall refinance the property within one hundred twenty (120) days from the date of Judgment to remove the Husband from liability on the mortgage.

45. With consideration of the Husband's financial interest in the real property he co-owns at 157 Highland Drive in Monroe, Connecticut, the Wife shall pay to the Husband the sum of fifty-three thousand sixty-five ($53,065) dollars for his ownership and equity interest in the marital residence.   She shall make the payment to the Husband within one hundred twenty (120) days from the date of Judgment.

46. Upon payment of the sum of fifty-three thousand sixty-five ($53,065) dollars from the Wife to the Husband he shall promptly vacate the property.   Until such time as the Husband vacates the marital home, the parties shall share in the household bills and expenses as they have historically done.

47. If the Wife is unable to pay to the Husband the sum of fifty-three thousand sixty-five ($53,065) dollars within one hundred twenty (120) days from the date of Judgment, she shall promptly list the property for sale with a licensed realtor as soon as possible.   She shall pay to the Husband the sum of fifty-three thousand sixty-five ($53,065) dollars from the net proceeds (the gross proceeds less the realtors' commissions, attorneys fees for the sale, conveyance taxes, recording charges, and the balance due on the mortgage).

48. Until such time as the marital residence is refinanced or sold by the Wife neither shall not pledge, encumber or lien, or cause or permit the real estate to be subjected to any judgment or claim without the written consent of the other or the express approval of the court.

49. The court retains jurisdiction over the marital residence until the Wife has paid the Wife the sum of fifty-three thousand sixty-five ($53,065) dollars, but not more than for three (3) years.

HIGHLAND DRIVE PROPERTY:

50. The Husband shall retain, free and clear of any claim by the Wife, all of the rights and ownership interest he has in the real property situated at 157 Highland Drive in Monroe, Connecticut.

DEBTS AND LIABILITIES:

51. The Wife shall be responsible for paying all of the debts set forth on her financial affidavit, dated and filed with the court on April 26, 2011.   She shall indemnify and hold the Husband harmless against any claims brought against him arising from such debts.

52. The Husband shall be solely responsible for paying the debts set forth on his financial affidavit, dated and filed with the court on April 26, 2011.   He shall indemnify and hold the Wife harmless against any claims brought against her arising from such debts.

53. Any debt incurred postjudgment is the sole responsibility of the party incurring the debt.

COUNSEL FEES AND COSTS:

54. The Wife shall be responsible for payment of her attorneys fees.

55. The Husband shall be responsible for payment of his attorneys fees.

By the Court,

John Turner

Judge of the Superior Court

Turner, John, J.