Denise M. Buckenheim v. David W. Buckenheim (2011)

MEMORANDUM OF DECISION

This action was commenced by the plaintiff wife against the defendant husband by service of the summons and complaint on April 24, 2008.   It was ultimately tried to the court in early 2011.   As a result thereof, the court makes the following findings of fact and conclusions of law.

The plaintiff and defendant were married on April 15, 1989 in Stamford, Connecticut.   Before the marriage each of the parties had lived and worked in New York City and owned their own cooperative apartments in New York City which were of approximately equal value.   They also brought approximately the same pre-marital assets and employment income into the relationship.   They moved to Stamford, Connecticut about the time of the marriage and came to buy a home in Stamford, Connecticut.   Their first child, Alec, was born on February 28, 1992.   Their second child, William, was born on May 22, 1993.   The parents came to notice that William was having problems when he was about 15 months old and when he was about three years old he was officially diagnosed as autistic.   The third and last child of the couple, Abigail, was born on October 6, 1994.   The parents began to look for a new residence in a better school district in the mid 1990s and ultimately bought a private home in New Canaan, Connecticut in the late 1990s.   For reasons that will be discussed in greater detail shortly, the marital relationship began to deteriorate over time until it became what both parties ultimately admitted was completely broken down and irretrievably damaged if not by the commencement of the case, then certainly by the time the matter came on for trial.

Jurisdiction and Decree

Both the plaintiff and the defendant have resided within the State of Connecticut more than twelve months prior to the commencement of this case.   The court finds that it has subject matter jurisdiction over this action and personal jurisdiction over each of the parties herein.   The court finds that the marital relationship has broken down irretrievably and there is no prospect of reconciliation.   The court further finds that during the term of the marriage neither party received any support from the State of Connecticut or any subdivision thereof.   The court finds that the parties are entitled to a decree of divorce and, accordingly, the court dissolves the bonds of matrimony between the plaintiff and the defendant and enters a decree of divorce herein.

Further Factual Background

The plaintiff wife, Denise M. Buckenheim, is a female who appears in her mid–40s and in good health though she reported having experienced stress and emotional turmoil increasingly over the term of the marriage.

Plaintiff's employment background is somewhat dated as she stopped working full-time upon the birth of their first child.   She has had some limited part-time employment since then and has also been involved in community action and litigation principally concerning the educational rights of autistic children such as her son William.   Plaintiff reports that recently she has been seeking employment in a sales position.   She has expressed however, that given the time demands imposed by Will's condition, she fears she will not be able to work full-time until Will turns 21 and his situation changes.

The plaintiff presents to the court as a capable and intelligent person with excellent interpersonal skills and talents.   It is clear she has significant earning capacity.   That earning capacity will be limited by Will's special needs and circumstance.   On that issue, the defendant offered his views that Will in fact is more capable, resilient and self-sufficient than his mother perceives.   In this regard it appears to the court that some of the more recent emotional problems described by plaintiff for Will do appear related to the tremendous stress in the household where both plaintiff and defendant continue to reside but live clearly separate lives during an increasingly rancorous divorce.   In short, the court finds that while the plaintiff has considerable earning potential, there will be a significant rehabilitative period during which that potential will be limited.   The court finds such limitations are likely to continue through the next three years at least.

The defendant, Mr. David Buckenheim, is a 51–year–old male who reports good health.   He holds a college degree in business and has been employed in a number of corporations principally in a sales capacity.   He is currently employed by BT North America as a vice president of sales.   His employer is a British company in the telecommunications industry.   While there have been some gaps in his total employment history, defendant appears largely successful in his profession.   His current salary is approximately $169,000.   In addition to this he receives commissions which are based upon his performance in relation to sales targets or objectives set for him.   To that extent, he describes his commissions as somewhat subjective.   The commissions are paid each month and there are adjustments where draws are balanced against actual production.   Over the past several years, defendant's income has ranged from just under $200,000.00 to about $280,000.00 The defendant however, describes his employer's business condition as declining.   He reports problems throughout the industry and describes certain business conditions for his employer which may impact his own career.   Not only have there been a number of layoffs in the company but these have included one or more of his bosses.   The defendant anticipates his income will be less in the near future.   It is also clear that, as discussed later, the defendant works long and hard and has himself experienced considerable stress by having to work “scared” for much of his recent career.   The court was persuaded that defendant's future income much beyond his salary is uncertain and problematical.

Over the course of the litigation and at various points during the trial, the parties spent considerable effort and energy on the history of the deterioration of the marriage and the causes for the breakup of the marriage.   Somewhat ironically, most of this effort was on the plaintiff's behalf.

From the plaintiff's perspective, much of the fault was attributable to the husband.   She complained that over the course of the marriage he spent long hours at his business, traveling frequently, staying at work late into the night, leaving her with all the responsibilities of running the household and especially those associated with the special needs of Will. She reported that on weekends defendant would use his time for recreation and relaxation rather than to make up his share of parental duties.   Plaintiff also described how on several occasions she felt the defendant should have perceived her needs, her exhaustion and her stress but he never reached out to provide her comfort.   This lead to her perception that he was increasingly cold and distant to her.   Perhaps the greatest factor, as described by the wife, was her suspicion that the defendant was having one or more affairs with three suspected women.   Ultimately, the wife offered testimony to support her concerns that the defendant was in fact having an affair.   Though the plaintiff was allowed to testify relatively freely as to the basis for her suspicions, which was largely intuitive, none of the factual matters she mentioned ever really supported her suspicions of extramarital affairs.

Finally, the plaintiff testified that about October 2010 she found some pornographic material on a teenage child's computer which she attributed to the husband and a data storage device in his golf bag the content of which might suggest romantic involvement with a male coworker.   These last contentions occurred very late in the divorce proceedings and were presented against the husband in a manner which can only be described as highly adversarial.

While plaintiff asserted this suspected conduct of the defendant, she also admitted that she contributed to the break-up of the marriage.   Her self-described contribution consisted of an affair with a married man in their community.   As described by the plaintiff, the relationship began in 2007 and she admitted it included, by her count, about one-half dozen sexual liaisons.   In early 2008, the defendant learned of this relationship when he discovered a high frequency of ongoing telephone calls between plaintiff and her paramour.   When directly confronted, the plaintiff admitted only an emotional relationship and repeatedly denied any sexual relationship.   The plaintiff testified she continued to deny for the next two to three years that there was any sexual component to this relationship, though such was a lie.   It was not until October of 2010 that plaintiff first admitted the sexual component.   This admission did not appear motivated by any desire to come clean, but was only made immediately before her deposition was taken, and nearing the eve of scheduled trial.

From the defendant's perspective, he steadfastly denied ever having any extramarital relationship with anyone, man or woman.   He readily admitted that he had worked long and hard in his employment and described, rather persuasively, the ongoing and consistent fears he had that his success might come to an end at any time as a result the deteriorating condition of his employer, the industry in which he worked, or simply office politics.   He described the three “suspects” identified by plaintiff as professional women with whom he had professional, albeit friendly, relations.   He also steadfastly denied placing any pornographic material on any home computer and denied knowing anything about data storage devices which might contain improper material or information about a fellow male worker.

The defendant also testified that as late as the summer of 2010 he invited the plaintiff to join him and the children on a family vacation, conditioned on her dropping the divorce proceeding.   Clearly, he had still not given up on the marital relationship.   He said that changed when in October of 2010, as final trial preparations were being made, he was simultaneously confronted with accusations of his own misconduct (the child's computer and extremely difficult allegations of a relationship with a fellow male worker) and admissions the wife had lied about her own affair.   It was at that point that he believed that any possibility for reconciliation and any remaining trust disappeared.

It should be noted by the court that by the plaintiff's own testimony and pleadings, she has maintained that the relationship between the parties had broken down irretrievably long before she obtained any of the October 2010 evidence of the alleged pornography or homosexual relationship she claimed by the husband, making the relevance of any such dubious.

In plaintiff's defense, it appears to the court that the plaintiff is and always has been a loving mother upon whom an extraordinarily heavy and difficult burden was placed by their special needs child.   She has fought and worked long and hard for her children and her burden has on occasion been made more difficult by the extreme professional demands under which the defendant has operated.   It appears to the court that while plaintiff tries to attribute to her husband at least part of the fault for her own conduct, the seminal cause for the strains and ultimate breakdown in the relationship may be attributable to the heavy burden the plaintiff has borne.

Notwithstanding that understanding and sympathy, it is also clear to the court that until late in the proceeding, the defendant had tried to salvage the marriage.   It is also clear that ultimately the causes for the break-up of the marriage are attributable to the wife.   Her extramarital affair was clearly a significant factor, but one which the parties might have survived.   The plaintiff's refusal to truthfully describe her affair, even when caught, greatly compounded the problem.   The presentation of very serious, indeed scandalous, accusations of misconduct against the husband, long after plaintiff had insisted the relationship was over, can only be taken as having been made for tactical purposes and not a search for truth as to the cause for the breakup of the marriage.

Ultimately, in fashioning an allocation of the property and making any award of alimony or support, this assessment of causation of the breakup cannot play a great role.   Of greater significance for the court is the considerable length of the marriage and the fact that there has been great hardship and stress during at least the last half of the marriage.   The court is not unmindful of the fact that while the husband has provided the vast majority of financial income and resources into the marriage, the wife has made her own significant contributions to the family and made her own sacrifices.   The court must necessarily be guided by the needs and concerns of the children.   Fortunately, both parties have recognized this guiding principle and, in effect, asked the court to follow it.

Allocation of Assets

In making an allocation of assets, the court has considered all of the factors set out in Conn. Gen.Stat. § 46b–81(c).

Specifically there are three pieces of real property owned by the parties during the term of the marriage.   Each of the parties brought into the marriage their separately owned cooperative located in Manhattan.   Each of these is approximately the same in value and neither is currently being occupied by the parties but are rented out.   While the plaintiff's co-op may have received some marital funds during the course of the marriage, the court finds the fairest thing to do is to leave each party with the co-op they brought into the marriage.   Accordingly, the cooperative apartment located at 121 East 88th Street, New York, New York shall be retained by the plaintiff free and clear of any right, title or claim by the defendant.   The cooperative apartment located at 313 East 84th Street, New York, New York shall be retained by the defendant free and clear of any right, title or claim of the plaintiff.   To the extent deemed appropriate or necessary by counsel, each party shall execute and deliver to the other a quit claim deed, or such other documentation as might be appropriate under New York law, to confirm title in the other party pursuant to the other of the court.

The Martial Residence

With regard to the marital residence located at 47 Parish Road North, New Canaan, Connecticut, it appears the parties hold title jointly.   This property is valued at approximately $1 million dollars with an outstanding mortgage in the range of $290,000.   The parties both recognized that it would be in the best interest of the children especially William and Abigail, for them to continue to reside in that home in the next few years.   Accordingly, it is the order of the court that title to the marital residence shall continue to be equal with each party owning 50% of the property.   Within thirty days of the date of this decision, the defendant is ordered to vacate the marital home and the plaintiff shall thereafter have exclusive possession thereof.   Until the departure of the defendant from the marital home, each of the parties shall be jointly responsible for one-half of all ongoing expenses for that period, including all utilities, mortgage, insurance and property taxes due upon the home.   Upon defendant's departure from the residence, plaintiff shall be solely responsible for all ordinary and customary expenses associated with the ownership and operation of the home including mortgage, taxes and insurance.   Any significant repairs or maintenance in excess of $750 will be borne equally by the parties.   No capital improvements to the marital residence may be made except upon the mutual agreement of both parties or further order of the court and plaintiff may not allow the indebtedness against the property to increase.   During the period of exclusive possession, the plaintiff shall maintain the marital residence in its current condition and good repair, suffering no damage or diminution in value other than that associated with normal wear and tear on the premises and shall indemnify the defendant for her failure to satisfy joint obligations relating to the marital residence in that period.

Upon the earliest of (1) the mutual agreement of both parties to sell the marital residence, (2) the plaintiff's departure from the marital home for a period more than 60 days, or (3) the plaintiff's remarriage, but in no event later than June 1, 2016, the parties shall jointly list the marital residence for sale with a real estate agent or broker licensed in the State of Connecticut on such terms and at such price as may be mutually agreed upon by the parties.   Upon sale of the marital residence, each of the parties shall be entitled to 50% of the net proceeds of the sale after satisfaction of any and all mortgage balances, taxes and all such normal and customary closing expenses and adjustments including commissions, legal fees, etc.   The defendant will continue to have access to all information concerning the indebtedness and condition of the mortgage and may petition the court to accelerate the listing and sale of the home in the event that plaintiff allows the mortgage to go into default or allows any waste or damage to occur to the marital residence.   Both parties will assist and cooperate fully in carrying out the listing, showing and sale of the home.   The court will retain jurisdiction with regard to the marital residence including the rights of the parties to possession, use of the home, listing for sale, showing and all aspects of the closing.   Further the court will retain jurisdiction to charge either party's share in the net proceeds of the closing or to adjust such party's percentage in the distribution of net proceeds in light of any violation by a party of their responsibilities hereunder.

Allocation of Personal Property

The plaintiff wife will retain as her sole and exclusive property free and clear of any right, title and interest or claim of the defendant the following property.

1. The 2003 Volvo XC 90.

2. The Pension–Williams shown on plaintiff's financial affidavit dated January 18, 2011 in Section IIE (approximate value $35,992.00).

3. All plaintiff's clothes, jewelry, personal effects and the like.

4. One-half interest in the Bank of America, Chase Bank joint checking and savings accounts, after application of said funds toward any joint obligations of parties in existence prior to the date of this decree.

5. One-half interest in all reimbursement checks, whenever received by the husband, which relate to or are in reimbursement for expenses incurred prior to the date of this decree.

6. A one-half interest in any marital assets not specifically addressed in this decree, including any share in tax refunds, tax loss carry forwards, accumulated credit card mileage, or award points, and medical reimbursements.

7. A one-half interest in the following:  the Fidelity brokerage account (approximate value $337,805), BT Group ESP UPS shares/money market (approximate value $39,524), Chase IRA (approximate value $2,600) and Fidelity IRA (approximate value $183,000) all as shown in the defendant's December 14, 2010 financial affidavit.

8. One-half interest in the T. Rowe Price 401(k) account ($723,000 approximate value).

The plaintiff shall be entitled to retain on behalf of Will, all Social Security Disability payment to which he may be entitled.

The defendant David Buckenheim shall receive and take as his sole and exclusive property free from any right, title, interest or claim of the plaintiff the following property.

1. The 2009 BMW 328X1

2. The IBM Stock (David) (approximate value $53,700) and IBM stock (David and Nancy Loxley) (approximate value $82,800) shown in Section 4E of defendant's December 14, 2010 financial affidavit.

3. All his clothes, personal effects, jewelry, tools and equipment.

4. One-half interest in the Bank of America, Chase Bank joint checking and savings accounts, after application of said funds toward any joint obligations of parties in existence prior to the date of this decree.

5. One-half interest in all reimbursement checks, whenever received by the husband, which relate to or are in reimbursement for expenses incurred prior to the date of this decree.

6. A one-half interest in any marital assets not specifically addressed in this decree, including any share in tax refunds, tax loss carry forwards, accumulated credit card mileage, or award points, and medical reimbursements.

7. A one-half interest in the following:  the Fidelity brokerage account (approximate value $337,805), BT Group ESP UBS shares/money market (approximate value $39,524), Chase IRA (approximate value $2,600) and Fidelity IRA (approximate value $183,000) all as shown in the defendant's December 14, 2010 financial affidavit.

8. One-half interest in the T. Rowe Price 401(k) account ($723,000.00 approximate value).

With regard to the home furnishings, china, glassware, furniture, art and other personal property not specifically addressed herein, the parties shall reach an agreement and divide by consent and agreement all such items of physical property.   Such property belonging to the husband should be removed from the marital residence prior to 30 days from the date of this decree, or as otherwise agreed upon by the parties.   Further the parties may by written agreement, agree to the possession or transfer to the husband of certain items of personal property but agree that such items may remain in the marital residence for the benefit of the children, without diminution of the defendant's therein.

The court shall retain jurisdiction with regard to the division, transfer and possession of any items of personal property or any other problems with regard to the allocation or division of such property and to enter a QDRO in conformity with this decree.

Each of the parties shall retain the right and ownership of any existing insurance policies listed in their financial affidavits.

Medical insurance

The defendant shall maintain health insurance for the benefit of himself and the children of the marriage, to the extent they are eligible, for long as it is available as a benefit of his employment.   The parties shall be equally responsible for any uncovered or unreimbursed medical or dental expenses for the minor children including any medical insurance premiums in the event coverage is not available through the defendant father's employment.   The defendant shall cooperate with his employer/insurer and the plaintiff in order for the plaintiff to obtain and enjoy any COBRA benefits provided by law.   The plaintiff shall be solely responsible for the cost or premiums associated with COBRA benefits.   Each of the parties shall cooperate and exchange such information, forms and consent as may be needed for the parties and minor children to obtain and enjoy these medical benefits.   The court also orders that (1) the signature of the custodial parent or custodian of any insured dependent shall constitute a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the medical services, to the custodial parent or to the custodian, (2) neither parent shall prevent or interfere with the timely processing of any insurance reimbursement claim and (3) if the parent receiving an insurance reimbursement payment is not the parent or custodian who is paying the bill for services of the medical provider, the parent receiving such insurance reimbursement payment shall promptly pay to the parent or custodian paying such bill any insurance reimbursement for such services.

Life Insurance

Each of the parties shall maintain life insurance for the benefit of the children in the minimum amount of $100,000 so long as the children are minors or there remains an educational support order in effect.

The defendant shall additionally maintain life insurance in the minimum amount of $500,000 for the benefit of the plaintiff so long as he has any alimony or support obligation to her or the children under this decree.

Educational Support Order

Both parties have requested the court to enter an educational support order with regard to the three children of the marriage.   The court finds that had the marriage continued the parties would have provided educational support to the children.   Accordingly, pursuant to Corm. Gen.Stat. § 46b–56 the court orders the parties to provide educational support as set forth in this Statute up to the applicable statutory limit for Alec and Abigail on the basis of 60% to be paid by the defendant and 40% to be paid by the plaintiff.

Children

The court finds that the parenting plan set forth as Appendix A (document # 123.00) and filed in court on December 16, 2010 was mutually agreed upon and executed by the parties to address parenting issues.   The court has reviewed the parenting plan finds it to be fair and equitable for each of the parties under the circumstances of this case and to be in the best interests of the children of the marriage.

Accordingly, the court adopts said plan and incorporates it within the provisions of this decree.   Without limitation thereon, the court orders that the parties shall have joint legal custody of the minor children and, the special needs child William.   The children shall reside primarily with the mother subject to the defendant's right to liberal and flexible parenting time with the children.

Alimony and Child Support

The court declines to award any alimony or support to the defendant.

The defendant shall pay to the plaintiff the following amounts as child support.

1. Commencing on August 1, 2011, and continuing thereafter until December 31, 2011 the defendant shall pay to the plaintiff on the first of each month the sum $9,500 per month.

2. Commencing on January 1, 2012 and through December 1, 2012, the defendant shall pay to the plaintiff on the first of each month the sum of $8,000 per month together with 30% of all gross income received by the defendant, (whether by way of bonus, draw, stock options, etc., but not including reimbursements for any actual out-of-pocket expenses or mileage) above $200,000 but less than $350,000.

3. For the period January 1, 2013 through December 31, 2014 or the closing for the sale of the marital residence, whichever occurs first, the defendant shall pay to the plaintiff the sum of $6,000.00 a month on the first of each month together with 20% of all gross income he receives between $200,000 and $300,000.

4. Commencing on January 1, 2015, and continuing until his 65th birthday the defendant shall pay to the plaintiff as alimony the sum of $4,000 a month.

All support payments due prior to January 1, 2015 shall be considered unallocated alimony and child support payments which are fully deductible by the defendant and shall be included within the income of the plaintiff.   All payments due on or after January 1, 2015, shall be considered as alimony, and be similarly deductible by the defendant.   The plaintiff shall have the right to claim any child or dependency deductions attributed to any of the children.

In making this determination of unallocated alimony and child support, the court has kept in mind that the minor child Abigail is entitled to support and maintenance until the later of her reaching the age of 18 or graduation from high school up until the age of 19 and that William, as a special needs child is entitled to reasonable support until he reaches 21 pursuant to the provisions of Conn. Gen.Stat. § 46b–84(c).

The support payments set out above shall terminate upon the death of either party or the remarriage of the plaintiff, in which case the parties may, by agreement or application to the court, secure an award for child support, if applicable.

Upon a substantial change in circumstance or co-habitation by the plaintiff as defined in Connecticut Conn. Gen.Stat. § 46b–86, the court shall have the right to amend, modify or terminate any support order herein including the right to separate and identify any alimony or child support components thereof.

No modifications of alimony, child support or unallocated alimony and child support shall be sought by either party herein simply because:  (1) a child has reached the age of majority, or in the case of William, reached the age of 21;  (2) the plaintiff has obtained employment so long as her annual gross wages remain below $35,000 or, after January 1, 2015, $50,000.00;  or (3) the husband's gross income has increased, unless such increase brings his annual gross income above $400,000.

Within 14 days of either party beginning new employment, having a change in the form, manner or amount of their compensation or salary, or receiving any commissions, bonuses, stock or stock options or other compensation in addition to their base salary, they shall provide to the other party written notice of this change and such documentation as will demonstrate it in all particulars.   Additionally, within 15 days of filing and in no event later than May 1 of each year, the parties shall exchange copies of their state and federal tax returns, including W–2, 1099 and K–1 forms.   Within 30 days of filing but no later than May 15 of each year, the defendant shall pay any balance due to the plaintiff by virtue of his obligation to pay a percentage of gross income to plaintiff.   This reporting obligation will expire where any obligation to pay support expires.

Attorney Fees and Costs

The court finds that upon distribution of the assets as called for herein, each of the parties will have sufficient assets to pay their own legal fees and expenses.   While the court is mindful the plaintiff has incurred substantial legal costs, a substantial portion of those appear attributable to tactical decisions during the course of these proceedings which ultimately were neither material nor helpful to the resolution of any issues.

Accordingly, the court declines to award either party any fees or costs incurred herein.

Done this 15th day of July 2011.

BY THE COURT

WENZEL, J.

Wenzel, William, J.