Diondrea Raymond v. Randy Raymond (2011)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' twelve-year marriage.   The action was commenced by complaint dated June 14, 2010, and returnable to the court on July 20, 2010.   The defendant filed an answer and cross complaint on July 7, 2010.

The parties appeared at trial on May 23, 2011.   The plaintiff and defendant were self-represented.   The court heard testimony from the parties and received into evidence twenty exhibits.   The court considered all of the evidence presented, the provisions of General Statutes §§ 46b–56, 46b–56a, 46b–56c, 46b–81, 46b–82, 46b–84, and 46b–215a, and the provisions of the Child Support and Arrearage Guidelines.   The court further took judicial notice of the criminal court orders and records involving the parties.

FINDINGS OF FACT

The parties were married in Sarasota County, Florida on May 22, 1999.   It was the first marriage for both.   Four children have been born to the plaintiff since the date of the marriage:  Xander was born October 1, 2002, Miranda was born September 28, 2004, Serena was born September 1, 2006 and Tanner was born October 16, 2008.   All of the children reside with the plaintiff in the marital home.

The plaintiff and the defendant lived in the State of Connecticut for more than one year prior to the date hereof.   The parties have been living separate and apart since on or about June 3, 2010.

The plaintiff is in good health.   She has completed a bachelor's degree in psychology and counseling and is a registered nurse.   She has been employed as a nurse at St. Francis for approximately nine years.   She has previously worked as a bartender and phlebotomist prior to obtaining her nursing license.   She currently earns approximately $72,000 a year.

The defendant has completed some college;  he went to Southern Connecticut State University for two years for exercise physiology and he also attended the University of Connecticut.   As of the date of the trial, he was working in sales for a linen company.   He was still in his probationary period.   The defendant had earlier had a job in sales with a pharmaceutical company.   He had a base salary of approximately $70,000 in 2009 and had the ability to earn bonuses—which he did not earn as he was terminated from that position in 2009.   He has only had short term jobs since being terminated until he started with the linen company on April 26, 2011.

The plaintiff believes the defendant to have side jobs as a bartender and as an owner/operator with a friend of a tee-shirt business.   The defendant testified the tee-shirt business has been discontinued and said he had to cease bartending as the hours conflicted with his sales job.

The defendant claimed he was the sole provider for the family for many years.   The plaintiff disputes that and the evidence supports the plaintiff's claim.

The parties' marriage has been volatile, at least for the last few years.   Both parties were arrested in connection with a domestic dispute in September 2009 and charged with disorderly conduct.   A family violence protective order was issued in favor of each party against the other.   In December 2010 the parties were again arrested and charged with disorderly conduct and interfering with an emergency call.   Another protective order was issued and no expiration date was set.   At the same time, in another docket number, the defendant was charged with violating conditions of release 2nd degree and another protective order (on the same terms as the first) was issued in favor of the plaintiff.   Lastly, the plaintiff was arrested in March 2011 and charged with violation of a protective order and another protective order was issued.   That protective order expired April 12, 2011.

As a result of the arrests and protective orders, the defendant moved out of the marital home and into the home of his parents.   He remained there through the date of the trial.

Pursuant to the protective orders, the parties contact with regard to the children was to be through a third party.   The couple has been unable to communicate effectively throughout the court proceedings.   For a time they were each represented by counsel.   On motion of the defendant, a guardian ad litem (GAL) was appointed for the children by the court.   On the day of the trial and with the assistance of the GAL the parties were able to agree on joint custody of the minor children and a very detailed parenting plan.   The court canvassed the parties as to their understanding of and agreement with the terms of the Stipulation for Judgment (the parenting plan) submitted by the parties and the GAL. The parties knowingly and voluntarily assented to the terms of the parenting plan, agreed it was fair and equitable and in the best interest of the children.   The parenting plan is in the best interest of the children and the court approves the same.

In addition to differences between them relating to their parenting of and access to the children (which was only resolved with the assistance of the GAL), there is also an inability of the parties to communicate and resolve their differences with respect to finances.

The defendant was ordered, pendente lite, to pay child support in the amount of $182 a week, plus $30 a week towards an arrearage.   He made sporadic payments of child support.   When asked why he paid sporadically the defendant replied “I have to pay lawyer's fees first, I have to pay daily living first ․” ¹ Only then does it appear to the court that he pays his child support.

In addition to his failure to timely and fully pay child support, he failed to contribute to the household expenses at the marital home for the last two years.

The parties purchased and moved into the marital home at 31 Bent Wood, Windsor, Connecticut in 2005.   The plaintiff has been attempting to refinance the home, but the defendant has refused to cooperate.   The court finds, based on the appraisal submitted by the plaintiff as Exhibit I the marital home has a value of $250,000.²  The marital home is encumbered by a first mortgage having an outstanding principal balance of approximately $237,000 and a home equity loan having an outstanding balance of $18,000.   The outstanding principal balance of such encumbrances exceeds the value of the home by approximately $5,000.

The defendant during his testimony prided himself on handling the financial planning for the family.   He may have done all of the planning, and made investments using marital funds, however, having done so, he was not entitled to wrongfully withdraw $3,600 from the plaintiff's Ameriprise 401(k) account.   The defendant also withdrew the entirety of the couple's joint Ameriprise 401(k) in the amount of approximately $23,000.   The plaintiff testified the joint funds were withdrawn between January and May 2010—before the dissolution action was instituted.   The defendant withdrew the plaintiff's funds in June 2010—by impersonating the plaintiff.   The defendant also liquidated his own 401(k) account.

The defendant acknowledged that he signed the plaintiff's name to obtain certain shares of BNY Mellon that were held by the plaintiff for the benefit of the children;  he claims he had her permission to do so—at least implicitly by virtue of their prior course of conduct.   Such a claim is neither credible nor supported by the credible evidence.   The estimated value of the shares converted by the defendant is approximately $3,700.   He denied cashing the checks and submitted checks into evidence.

The plaintiff in 2010 or 2011 received approximately $3,000 from the settlement of an automobile accident.   She did not share it with the defendant.   It is not known if the settlement was received before the automatic orders were in effect.

As of the date of the trial, the plaintiff and defendant each had a bank account with a relatively negligible balance.

The plaintiff has a 401k plan at the Hartford having a value of approximately $2,700.

The plaintiff was as of the date of trial driving a 2000 Dodge Caravan having a value of $2,500.   The defendant has a 2001 Chrysler Town and Country which the court finds to have a value of approximately $2,000.

The parties own a timeshare in Vacation Village at Parkway, Kissimmee, Florida.   It was purchased in April 2009.   Based on the financial affidavits of the parties, the value of the timeshare is found by the court to be $12,000.   Both parties listed a very minimal mortgage on the timeshare;  the plaintiff listed a mortgage of $195 and the defendant listed a mortgage of $193.   The court finds such amount to be the monthly payment on the timeshare.   Such finding is based on the evidence produced by the plaintiff that the defendant charged the sum of $387 against her American Express credit card—without her permission—and she attributed the charge to the defendant's payment of the timeshare expenses for two months.   American Express credited the amount back to her card.   There was then no evidence of the total liability for the timeshare and no way for the court to determine if there is any equity in the unit.

The defendant was ordered, pendente lite, to pay 27% of the unreimbursed medical expenses.   The plaintiff claims the defendant owes her his share of the unreimbursed medical expenses, but she did not produce any evidence to support the claim.   The defendant, however, actually acknowledged not paying to the plaintiff any amount towards the unreimbursed medical expenses;  he claimed his failure to do so was due to her failure to provide him with bills and also because she has fraudulently been seeking child care reimbursement.   He said his attorney advised him of the fraud being perpetrated by the plaintiff.   There was no evidence to support such claim.   In any event, as the plaintiff did not produce any evidence to support the amount of the unreimbursed medical expenses payable by the defendant the court is unable to make a finding of an arrearage owing therefore.

The plaintiff testified there is a debt in the amount of $1,196 to the Poquonock Playschool for the 2009–2010 school year incurred for Serena.   Serena attended the preschool in the 2010–2011 school year as well.   The tuition for the 2010–2011 school year was $3,455 and $2,910 remains payable as of May 2011.   The defendant does not believe he is obligated to pay any portion of the same.

ADDITIONAL FINDINGS AND ORDERS

The court makes the additional findings and enters the following orders:

A. Jurisdiction and Dissolution

The court has jurisdiction in this matter which has been pending for more than ninety days.

The allegations of the complaint are proven and true.   The marriage has broken down irretrievably.

A decree of dissolution may enter as of the date of this memorandum.

B. Custody and Access to the Minor Children

The court has reviewed the parenting plan, considered the testimony at trial and the factors set forth in General Statutes § 46b–56(c) and approved the parenting plan providing for joint legal custody of the children.   The court hereby orders that the parenting plan be made a part of the court file and incorporated in and made a part of the judgment.   As set forth in the parenting plan, the parents are ordered to have the children continue with therapy until the therapist determines there is no further need for therapy or until further order of the court.

The parties shall communicate regarding the children by using the Our Family Wizard website.   This website shall be used by the parties to keep each other informed regarding the children's activities, to communicate with each other regarding the children and shall be updated with the children's information by using the information bank section of the program.   If not previously set up, the plaintiff shall be responsible to initially set up the website and shall be responsible to maintain said website, and providing the information for the information bank.   Once the plaintiff has set up the website, she shall inform the defendant that the website is set up and the parties shall commence using the website.   The parties shall each be responsible for 50% of the cost of the website.   The defendant shall pay his share to the plaintiff within 30 days of presentation of a bill therefore.

The court finds the foregoing orders to be in the best interest of the children.

The parties owe the GAL fees through the date of May 23, 2011;  the sum of $6,925.35 is owed by the plaintiff and the sum of $9,549.08 by the defendant.   The parties are ordered to pay the same to the GAL immediately and in event within thirty days of the date of this memorandum.

The court vacates the appointment of the GAL effective without further order as of the date that is thirty days from the date hereof.

C. Earning Capacity

The defendant's financial affidavit is based on his earnings in his new sales job.   He has previously earned significantly more money and was terminated from his job for cause.

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income ․ Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007);  Eliah v. Eliah, 99 Conn.App. 829, 833 (2007).

The court finds the defendant to be in good health and perhaps capable of earning more than $1,000 a week as his historical income exceeded that amount.   The court is not convinced however that, circumstances being as they are with respect to the defendant's employability, the defendant will in the foreseeable future earn in excess of $1,000 a week.   Accordingly, the court has determined his earning capacity to be $1,000 a week.

D. Child Support

Based upon the combined net weekly income of the parties the presumptive child support payable by the defendant father to the plaintiff mother is $204 a week.   After hearing the testimony of the parties and reviewing the financial affidavits, the earnings of the respective parties, and the deviation criteria set forth in Section 46b–215a–3(b)(6) of the Child Support and Arrearage Guidelines Regulations, the court orders the defendant to pay the plaintiff the sum of $204 per week for child support.   The court orders the child support payment shall be made by immediate wage withholding.

The court finds the defendant to be in arrears in the payment of child support in the amount of $1,433 as of May 23, 2011.   The court orders the arrearage to be incorporated into this judgment of dissolution.   See Evans v. Taylor, 67 Conn.App. 108, 116 (2001).   The defendant is ordered to the arrearage to the plaintiff by payment of $25 a week (together with the weekly child support payments of $204 for a total of $229 a week) until the arrearage has been fully satisfied.   The payment towards the arrearage shall also be by immediate wage withholding.

E. Medical insurance for the children

The plaintiff shall maintain the children on the plaintiff's healthcare insurance.

The defendant shall be responsible for 31% of the amount of the cost of plaintiff maintaining the children on her health insurance plan and of any unreimbursed medical, dental, optical, pharmaceutical, psychological, psychiatric, and orthodontic expenses, including any deductibles, for the minor children;  however, if the minor children shall not have graduated from high school at the time of his/her eighteenth birthday, then the provisions of General Statutes § 46b–84(b) shall apply.   In addition, the provisions of General Statutes § 46b–84(e) shall apply regarding the processing of medical insurance claims for the minor children.   The defendant shall reimburse the plaintiff for 31% of the cost of childcare, preschool and before and after school childcare.   The defendant shall reimburse the plaintiff for his share of such expenses within 30 days of receipt of copies of bills for such costs.

F. Extracurricular activities for the children

The plaintiff and the defendant shall, as set forth in the parenting plan, equally share the cost of the children's extracurricular activities.

G. Post majority support

The court finds it is more likely than not that if the family had remained intact the parents would have provided financial support for the children's post-majority education.   Pursuant to the provisions of General Statutes § 46b–56c, the court reserves jurisdiction to determine educational support and each party reserves her/his right to file a future motion or petition for an educational support order.

H. Alimony

Each party shall pay $1.00 per year alimony to the other, modifiable as to amount only if a party is called upon to pay the debt obligations of the other whether said debts are discharged in bankruptcy or not.   Said alimony shall terminate when each party satisfies his or her respective debt obligations as set forth herein.

Based upon the statutory factors, including the length of the marriage, the age, education, earnings, vocational skills and work experience of the defendant and of the plaintiff, the court has determined it is appropriate that, except as set forth above, no alimony be awarded to either party.

I. Medical insurance for the parties.

The plaintiff shall maintain, at her expense, medical insurance coverage for herself (and, as set forth above, for the children, the cost of which shall be shared by the defendant).   If the defendant is unable to obtain health insurance through his employer for himself, the plaintiff shall cooperate with the defendant to enable him to remain, at his sole expense, on her health insurance through COBRA for up to three years from the date of this judgment.

J. Division of property

1. Marital home.   The defendant shall quitclaim to the plaintiff all of his right, title and interest in and to the property known as 31 Bent Road, Windsor, Connecticut, within thirty days of the date hereof.   The plaintiff shall have exclusive possession of the property.   The plaintiff shall be responsible for the expenses of said property, including, without limitation, the mortgage, the home equity loan, real estate taxes, insurance and utilities and shall indemnify and hold the defendant harmless in regards to the same.   The plaintiff shall use reasonable efforts to refinance the marital home and remove the defendant from liability on the note secured by the mortgage on the same.   Until the defendant is removed from liability on the mortgage and home equity loan, the plaintiff shall not further encumber the value of the home.

In the event the defendant is not removed from liability on the mortgage by December 31, 2011, the home shall be immediately placed on the market for sale with a listing agent having at least ten years of experience in the Windsor market.   The plaintiff shall select the agent.   The property shall be listed at the listing price suggested by the listing agent.   The plaintiff shall accept any offer within five (5) percent of the listing price.   Every ninety days, the previous listing price shall be reduced by five (5) percent.   The plaintiff shall actively participate in the sale of the property with the intent of selling the property quickly in order to have the defendant relieved of liability for the mortgage.

The court shall retain jurisdiction over the terms and conditions of the sale.

Upon the closing of sale of the marital home, the sale proceeds shall be utilized to pay in full the following expenses:  all conveyance taxes, real estate sales commissions, legal fees for closing of sale, and other normal expenses incurred in connection with the sale and the amount due to pay off the mortgage(s) on said premises.   After payment of all of the foregoing, the remaining proceeds, if any, shall be delivered to and retained by the plaintiff.

The court in awarding the marital home to the plaintiff without allocating a share of the value thereof to the defendant, has considered the credible testimony of the plaintiff that the defendant withdrew money from the joint accounts and did not share the same with the plaintiff and further due to the defendant impersonating the plaintiff to withdraw the funds from her 401(k) account.

2. The time share in Florida.   The time share shall be immediately placed on the market for sale with a listing agent selected by the defendant.   The listing price shall be determined by the listing agent.   The parties shall accept any offer within five (5) percent of the listing price.   Every ninety days, the parties shall review the listing price of the property.   If they are unable to agree upon a new price, then the previous listing price shall be reduced by five (5) percent.   Both parties shall actively participate in the sale of the property with the goal of selling the property as quickly as possible.

The court shall retain jurisdiction over the terms and conditions of the sale.

Upon the closing of time share, the sale proceeds shall be utilized to pay in full the following expenses:  encumbrances on the timeshare, conveyance taxes, real estate sales commissions, legal fees for closing of sale, and other normal expenses incurred in connection with the sale.   Any remaining proceeds and any deficiency shall be equally shared by the plaintiff and the defendant.

During the time pending the sale, the defendant shall be responsible for the payment of the expenses of the time share and he shall have exclusive use thereof.   If during such time the defendant leases the time share he shall be entitled to all rental proceeds derived therefrom.

3. Automobiles. The plaintiff and the defendant shall each retain the vehicle used by each as of the date of the trial.   Within thirty days of the date hereof, each party shall execute any documents necessary to effectuate the transfers of such vehicles.   Each party shall hold the other harmless from any and all liabilities related to their respective vehicle.

4. Savings accounts and bank accounts.   The plaintiff and defendant shall retain as her/his sole property free and clear of any claim by the other their respective bank accounts as shown on their financial affidavits.

5. Retirement accounts and return of funds taken from previously held retirement accounts and children's funds.   The plaintiff is awarded her 401k plan as shown on her financial affidavit of May 18, 2011 free and clear of any claim by the defendant.

The defendant is ordered to pay to the plaintiff the sum of $13,000—which sum is intended to reimburse her for $3,000 taken from the 401(k) that was in the name of the plaintiff and $10,000 representing one-half of the joint 401(k).  The defendant is to pay the same to the plaintiff in full by June 30, 2012.

The court is declining to order the defendant to restore the funds taken from the children's BNY Mellon account.

6. Debts. The 2008 Federal tax liability in the approximate amount of $3,660, together with all interest and penalties thereon and hereafter accruing, shall be payable by the defendant and he shall indemnify and hold the plaintiff harmless from liability therefore.

The plaintiff shall be responsible for the liabilities shown on her financial affidavit dated May 18, 2011 and for the liability payable to Poquonock Playschool for the 2009–2010 and 2010–2011 school years, and shall indemnify and hold the defendant harmless from liability therefore.

The defendant shall be responsible for the liabilities shown on his financial affidavit dated May 23, 2011 and shall indemnify and hold the plaintiff harmless from liability therefore.

7. Life insurance.   To the extent available to the defendant at a reasonable cost, the defendant shall maintain life insurance in an amount of not less than $100,000 naming the minor children as irrevocable beneficiaries thereon for so long as each such child is a full-time student or until he/she reaches twenty three years of age whichever is first to occur and name the plaintiff as the trustee of the insurance benefit for the children subject to probate court supervision.

The defendant shall provide proof of maintenance of said insurance to the plaintiff at least once annually.   The defendant shall also notify the insurance companies to send to the plaintiff duplicate notices of any potential lapse or cancellation for nonpayment of premium or otherwise.   The defendant shall sign an authorization or release to allow the plaintiff to make direct inquiries of the life insurance provider.   Said authorization or release shall expire when the defendant's obligation to carry life insurance terminates.

The defendant is awarded the cash value of his life insurance policy with Amerprise as shown on his financial affidavit.   He is solely responsible to pay the amount of the loan on the policy.   This insurance policy may be maintained by the defendant in addition to or as the life insurance policy he is required to maintain pursuant to the preceding paragraph.

8. Personal property.   The defendant spent an inordinate amount of time during his testimony on the division of personal property.   The couple apparently amassed over 500 DVDs. He is also very concerned about the sauna, fish tanks, iPod touches, and the like.   The plaintiff was willing to accommodate the defendant with respect to his requests for certain of the personal property of the parties.   Accordingly, the plaintiff and defendant are ordered to allocate between them all household furnishings and contents as they all presently exist.   Neither party is required to repair or replace any item of personal property.   In the event that the parties cannot agree upon the division of personal property, the issue shall be mediated by a third-party mediator and each party shall pay, up front, one-half of the costs of such mediation.   To the extent permitted by the terms of any applicable restraining or protective order, the defendant shall be permitted to return to the marital home one time accompanied by the police or another third party acceptable to the plaintiff to retrieve his belongings.

K. Tax Exemptions

The plaintiff shall be entitled to claim two of the minor children as an exemption on her federal and state income tax returns and so long as the defendant is current with his child support the defendant shall be entitled to claim two of the minor children on his federal and state income tax return.   It is the intention of the court that the defendant shall be current with child support for the year as of the year end in order to be entitled to claim such exemptions (although the court is not intending in the least to encourage the defendant to do other than timely pay his child support when due and he is ordered to do so).   At such time as there are only three dependent exemptions permitted to the parties, in each even numbered year the plaintiff shall take two exemptions (consisting of the two oldest children still being taken as dependants) and the defendant shall take one and the opposite shall be in effect on odd years—again the ability of the dependant to take the exemption(s) is dependent upon him being current with child support as above.   When there are only two dependents, each party shall claim one child as a dependent—again the ability of the dependant to take the exemption(s) is dependent upon him being current with child support as above.   When there is only one child eligible to be claimed as a dependent, the plaintiff shall take the exemption in even numbered years and the defendant shall do so in odd numbered years—again the ability of the dependant to take the exemption(s) is dependent upon him being current with child support as above.

L. Tax Indemnification

Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that parties' income or deductions.

M. Tax Information

For so long as the defendant has an obligation to pay child support to the plaintiff, the parties will annually exchange their W–2's, 1099's, K–1 and similar forms by February 15 each year and will provide each other with their federal tax returns within five days of filing.

N. Fees

Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.

O. Effectuation of Orders.

Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within ten days of presentment.

Unless otherwise specifically set forth herein, these orders are effective immediately.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. For the record May 23, 2011, 90 Washington Street, Courtroom B–4, 2:40:16 p.m..  FN1. For the record May 23, 2011, 90 Washington Street, Courtroom B–4, 2:40:16 p.m.

FN2. The court does not credit the Zillow estimate submitted by the defendant from the internet..  FN2. The court does not credit the Zillow estimate submitted by the defendant from the internet.

Olear, Leslie I., J.