Peter Olson, Jr. v. Virginia Olson (2011)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' twenty-year marriage.   The action was commenced by a complaint dated July 9, 2010 which was returnable to the court on September 7, 2010.

The plaintiff and his counsel appeared at trial on July 19, 2011.   The defendant's counsel was physically present at the trial and the defendant was present telephonically.   The court heard testimony from each of the parties, and received into evidence eight 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.

As financial matters were in dispute in the contested dissolution trial, the court ordered the unsealing of the financial affidavits pursuant to Practice Book § 25–59A.

FINDINGS OF FACT

The court makes the following findings of fact.   All factual findings made herein have been made by a fair preponderance of the evidence unless otherwise set forth herein.

The parties were married in Norwich, Connecticut on October 27, 1990.   The plaintiff lived in the State of Connecticut for more than one year prior to the filing of the complaint.   One child, Kenneth, was born to the parties on April 12, 1994.   Pursuant to an order of the juvenile court, the plaintiff currently has sole custody of the minor child.   The minor child is seventeen and still in high school.   The State of Connecticut has contributed to Kenneth as he receives HUSKY health care.   The parties stipulated sole custody of Kenneth shall remain with the plaintiff.   Given Kenneth's age and the defendant being located in California at this time, no specific visitation schedule for the defendant was proposed nor would it be appropriate at this time.

The plaintiff is approximately 57 years old.   He obtained his pharmacy license in 1997 and has since then had checkered employment as a pharmacist.   Sometime around 2000, his license as a pharmacist was under review for abuse of prescription medicines.   His license was restored in 2002.   In November 2002 he again began to work as a pharmacist until 2009.   In 2009 the plaintiff stopped working as a pharmacist because he was experiencing “black outs.”   He would not lose consciousness, but experienced times when he was unable to remember what he had being doing moments earlier—he would not remember having filled prescriptions.   In August 2009, due to his concern for the safety of the pharmacy customers, he voluntarily stopped working as a pharmacist.   He has not worked since then.

He has a past medical history of smoking and alcohol and drug abuse, and currently suffers from periodic leg movement disorder, obstructive sleep apnea syndrome, narcolepsy, morbid obesity, hypersomnia, and depression.   The defendant recently had a stroke or cerebrovascular accident.   When last evaluated after the stroke his neurological functions were within normal limits.   He continues to take medication to address his medical issues.

When the plaintiff was last employed as a pharmacist he was making approximately $145,000 a year.   The plaintiff applied for short-term disability with his prior employer;  that claim was rejected.   The only reported income the plaintiff receives is $182 a week which is the payment for Kenneth as a result of the defendant being on Social Security Disability (SSD).  The plaintiff's sister had been contributing to his household by providing him with varying sums that approximated $1,000 a month.   She has ceased doing so.   The plaintiff has only relatively recently applied for SSD. There has been no action taken yet on his application.   His reason for delay in the application was not explained.

The defendant is fifty-three years old.   She graduated from the University of Connecticut with a BA in nursing and worked as a nurse from 1981 until 1996.   In 1996 she became disabled and began to receive SSD payments.   She receives approximately $363 a week in SSD payments.

She suffers from several ailments including common variable immune deficiency, a possible mitochondrial disorder (which is being evaluated), bronchitis, candida, scoliosis, migraines, fibromyalgia, irritable bowel disorder, hearing loss and other disorders.   She takes many medications, including having two intravenous treatments a week and wearing a Fentanyl patch.

Despite her disability, the defendant moved to California in February 2003 so that her son Kevin—who is not the biological son of the plaintiff—could become an actor.   When she moved she took Kenneth with her as well.   The initial plan was to stay for a couple of months so Kevin could have auditions during the pilot season in Hollywood.   It did not pan out for Kevin.   The defendant kept extending the time of her stay in California with the boys.   In 2004 the defendant asked the plaintiff to move to California and work as a pharmacist in that state.   However in 1997 when the plaintiff obtained his pharmacy license it was a state specific license and so he was unable to transfer his license to California;  he would have been required to retake the pharmacy examination which he chose not to do.   He did not move to California.

The defendant and children initially resided in a hotel/motel when they went to California.   Subsequently the plaintiff signed a lease for the defendant and the children for an apartment in California.   He paid the rent for the apartment until he stopped working in August 2009.   There was conflicting testimony as to whether he gave notice to the defendant prior to his ceasing to pay rent.   The defendant and the children were evicted from the apartment.

The defendant testified that she is homeless and sometimes lives in her car.   She said she is saving to return to Connecticut.

She testified that she wanted the plaintiff to come and get her and bring her back to Connecticut, but the plaintiff would not do so.   The plaintiff did go to California in October 2010 to pick up Kenneth and brought him back to Connecticut.   The plaintiff did so as he received a call from the California child services agency because the defendant was in a psychiatric unit of a hospital and there was no one to care for Kenneth.   The defendant testified the plaintiff left her in California with the knowledge that she was homeless.

Notwithstanding the defendant's stated desire to live in Connecticut, she chose not to do so on earlier occasions.   The defendant returned to Connecticut in 2006 with Kenneth and Kevin, but left and returned to California.   She was also in Connecticut from February 2010 to April 2010, but she returned to California as she claims she was denied health care in this state.

The defendant also indicated she could not stay in the marital home at 15 Prospect Hill Drive, Windsor, Connecticut, because it was in deplorable condition;  there was dog feces around the house and the kitchen ceiling had collapsed.   The condition of the home was such that DCF removed Kenneth from the home until the plaintiff made repairs thereto.

The necessary repairs were made and, although the home continues to be in poor condition, the plaintiff and Kenneth continue to live in the marital home.   The home was purchased in 1985 by the plaintiff and it remains in the name of the plaintiff.   The home was valued by the plaintiff at $110,000 and by the defendant at $120,000.   The court finds the value to be $110,000—but it is really of no consequence as the home is encumbered by liens and judgments, including, without limitation, a lien in favor of the Internal Revenue Service for in excess of $108,000.   The total of the other liens and judgments, exclusive of real estate taxes, is in excess of $15,000.   The past due real estate taxes exceed $22,000.   There is no equity in the marital home.

The evidence before the court as to the defendant's limitations is both credible and compelling.   The defendant, given her present needs, has no earning capacity.

The defendant seeks to have the court attribute to the plaintiff a significant earning capacity due to his prior work as a pharmacist and to award alimony based thereon.

“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).  “It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations ․” Weinstein v. Weinstein, 280 Conn. 764, 772 (2007).   Moreover, “lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate.”   Carasso v. Carasso, 80 Conn.App. 299, 304 (2003), cert. denied, 267 Conn. 913 (2004).”  Milazzo–Panico v. Panico, 103 Conn.App. 464, 468 (2007).

The court finds the defendant, through his various past poor choices, to have hindered his ability to continue to earn the money he once did.   His ability to work as a pharmacist has been further hindered by his poor health.   The plaintiff's lifestyle is not such that the court can fairly or justifiably attribute additional earnings to him.   The court does not find that the plaintiff has willfully restricted his earnings to avoid paying support.   The court finds, after considering the credible evidence, the defendant's annual gross earning capacity does not, at this time, exceed $18,000, which amount is based on a minimum wage job.   The court further finds that the financial orders of the court, including the alimony order, should be based thereon.  Vandal v. Vandal, 31 Conn.App. 561, 666–67 (1993).

The income of the defendant from SSD is equivalent to the earning capacity attributable to the plaintiff.   While a permanent award of alimony to the defendant may be deserved when her circumstances are viewed separately and apart from the circumstances and condition in which the defendant now finds himself, the court cannot equitably enter an order of the nature sought by the plaintiff.

ADDITIONAL FINDINGS AND ORDERS

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

1. The court has jurisdiction in this matter which has been pending for more than ninety days.   The plaintiff has lived in the State of Connecticut for more than one year prior to the institution of the action.

The marriage has broken down irretrievably.

The court finds the allegations of the complaint have been proven and are true.

The State of Connecticut has contributed to the support of the parties or the child.

2. The marriage of the parties is hereby dissolved, and they are each hereby declared to be single and unmarried.

3. The proposed orders of the State of Connecticut dated July 19, 2011 (doc. no. 116) are hereby approved and made orders of the court.   The orders are hereby incorporated and made a part of the judgment of dissolution by reference thereto.

4. (a) The plaintiff shall pay to the defendant the sum of one ($1.00) Dollar per year as and for periodic alimony, until the death of either party, the remarriage of the defendant or the cohabitation of the defendant, whichever shall sooner occur.

(b) No alimony is awarded to the plaintiff.

5. As the parties stipulated at trial and after considering the credible testimony at trial together with the factors set forth in General Statutes § 46b–56(c), the court orders sole legal custody of the minor child to the plaintiff.   The defendant mother is granted liberal parenting time as agreed upon by the parties and Kenneth.

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

6. The court finds the presumptive amount of child support payable pursuant to the Connecticut Child Support and Arrearage Guidelines is $0 if payable by the plaintiff and $92 if payable by the defendant.   The court finds the application of the guidelines would be inequitable or inappropriate and deviates therefrom due to the special circumstances of the disability of the defendant.   Accordingly, in lieu of child support, the SSD dependency benefit available for the benefit of the minor child, currently set at $182 and as the same may be from time to time adjusted, shall be paid to the plaintiff as child support for Kenneth.

7. The medical insurance orders and the sharing of the unreimbursed medical expenses for the minor child shall be as set forth in the proposed orders of the state of Connecticut as those were approved and incorporated herein.

The plaintiff and the defendant shall each obtain their own medical insurance.

8. The expense for the child's extracurricular activities shall be borne by the plaintiff.

9. The court finds as a matter of fact that it is more likely than not that the parents would have provided support to their children for higher education or private occupational school if the family had remained intact.   Pursuant to the provisions of General Statutes § 46b–56c, the court reserves jurisdiction to determine educational support and each party reserves their respective right to file a future motion or petition for an educational support order.

10. Division of property and liabilities.

(a) The plaintiff shall have exclusive possession of the real property located at 15 Prospect Hill Drive, Windsor, Connecticut, and shall retain title to same free and clear of any claims of the defendant subject to any and all existing liens, judgments and encumbrances thereon.   The plaintiff shall hold the defendant harmless from liability in connection with the liens, judgments and encumbrances on the aforesaid real property.

(b) Each party shall be entitled to keep the automobile which they are currently driving, whether owned or leased, free and clear of any claims by the other, and each party shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register same.   Specifically, the plaintiff shall keep the 2005 Saturn and the defendant shall keep the 1999 Saturn.   The plaintiff shall indemnify and hold the plaintiff harmless from any and all liability in connection with the loan secured for the 2005 Saturn.

(c) The parties shall retain any bank account they may hold free and clear of any claim by the other party.

(d) Each party shall be entitled to his/her personal property free and clear of any claim by the other party.

(e) The plaintiff and the defendant shall each be responsible to pay all of the debts shown on their respective financial affidavits.   Each party shall indemnify and hold the other harmless with respect to any debt, or portion thereof, ordered to be paid by such party.

11. The plaintiff shall have the minor child for tax exemption and deduction purposes.   The parties shall cooperate to effectuate the provisions of this section and shall execute any forms necessary.

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

13. Each party shall notify the other within fifteen days of the date such party obtains or changes employment.   The notification shall include the name and address of the employer and the anticipated salary or wages to be earned by such party.

The parties will annually exchange their W–2s, 1099s, K–1s and similar forms by February 15 of each year and will provide each other with their federal tax returns within fifteen days of filing.

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

15. 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.

Olear, Leslie I., J.