Gloria Luster v. Donald Luster et al. (2011)

MEMORANDUM OF DECISION

The plaintiff, Gloria Luster, filed a complaint seeking a legal separation from the defendant, Donald Luster, dated February 23, 2009, with a return date of March 17, 2009.   The complaint also named the Conservator of Donald Luster, Jeannine Childree, and the Conservator of the Estate of Donald Luster, Jennifer Dearborn, as defendants.¹  The complaint alleged, inter alia, that the plaintiff and defendant, Donald Luster, intermarried on October 5, 1963, and that since October 5, 1963, irreconcilable differences had occurred between the parties which caused the marriage to break down irretrievably without hope of reconciliation.   On March 16, 2009, the defendant through his conservators filed an answer wherein they admitted all the allegations of the complaint.

On April 1, 2009, the conservators filed a cross complaint alleging that the marriage between the plaintiff and defendant had broken down irretrievably without hope of reconciliation.   The conservators, however, sought a dissolution of marriage.

On October 30, 2009, the plaintiff filed a motion to dismiss the cross complaint on the basis that an involuntary conservator may not bring an action for the dissolution of marriage on behalf of a ward.   On November 17, 2009, the defendants filed an objection to the plaintiff's motion to dismiss.   On January 7, 2010, the Court (Klaczak, J.) issued a memorandum of decision granting the plaintiff's motion to dismiss the cross complaint [49 Conn. L. Rptr. 179].   On January 26, 2010, the defendant filed an appeal.

On August 6, 2010, the defendant, while the appeal was pending, filed a motion for an immediate trial on the plaintiff's complaint seeking a legal separation.   On September 8, 2010, the defendant's motion was granted by the Court (Suarez J.).

On December 22, 2010, a trial for the legal separation of the parties commenced.   The trial continued on December 23, 2010, February 23, 2011 and concluded on March 9, 2011.   Simultaneous post-trial briefs were filed on March 23, 2011.   The court heard testimony from the plaintiff, the Conservator of the Estate, the Conservator of the Person, two medical experts, and two fact witnesses.   The plaintiff introduced 85 exhibits and the defendant introduced 133 exhibits.

On January 11, 2011, the defendant's appeal on the Court's dismissal of the cross complaint was argued, and on April 26, 2011, the Appellate Court reversed the Trial Court.   The Appellate Court held that a Conservator of the person was not prohibited from seeking a dissolution of marriage on behalf of a ward.   The Appellate Court remanded the case for further proceedings.

On April 28, 2011, after evidence was concluded on the plaintiff's action for a legal separation, the Trial Court held a hearing affording the parties an opportunity for further proceedings.   The defendant simply asked the Court to act on their reinstated pleading based on the evidence presented at trial.   Neither party provided additional evidence.

On June 6, 2011, the plaintiff filed a petition for certification to the Connecticut Supreme Court, pursuant to Connecticut Practice Book section 84–1.   On July 13, 2011, The Supreme Court granted plaintiff's certification to appeal.   The question on appeal is “[d]id the Appellate Court properly determine that involuntary conservators of the person and the estate of a ward may seek a dissolution of marriage on behalf of a ward?”

I. FACTS

The court makes the following findings of facts.

The parties were married on October 5, 1963, in Baltimore, Maryland.   The parties have lived in the State of Connecticut for more than one year prior to the filing of this petition.   All statutory stays have lapsed.   The Court has jurisdiction.   The parties have four adult children.

The plaintiff was born on July 7, 1942, and is in generally good health.   She is now retired but has worked for over thirty years as a secretary.   Since the commencement of trial, the plaintiff obtained a part-time job at an apartment complex doing secretarial work.

The defendant was born on August 21, 1939, and is not in good health.   The defendant has been diagnosed with Alzheimer's dementia.   He is currently residing in an assisted living home.

The parties met while the defendant was in the military service.   Upon discharge from the military in 1964, the parties moved to Troy, New York so that the defendant could pursue a Master's Degree at Rensselaer Polytechnic Institute.   While the defendant was working towards his Master's Degree, the plaintiff worked as a secretary.   In 1967 the parties moved to Syracuse, New York, where the defendant enrolled in a doctoral program in engineering at Syracuse University.

During this period of time, the plaintiff was working at Syracuse University as a secretary.   In 1969, the defendant obtained work in Connecticut and the parties moved to Connecticut.

In 1969, the parties purchased the marital home located at 11 White Birch Drive, in Tolland, Connecticut.

In 1970, the plaintiff gained employment at a temporary employment agency and was placed at the Aetna Insurance Co. (hereinafter “Aetna”) as a secretary.   The plaintiff worked part-time at Aetna.   At that time, the parties had two minor children.   The parties subsequently had two more children and the plaintiff managed to work part-time and care for the family.   In 1979, the plaintiff began working full time at Aetna.

When the parties first moved to Connecticut, the defendant worked for Pratt and Whitney.   After about one year at Pratt and Whitney, the defendant was laid off.   The defendant was unemployed for approximately one year.   In 1971 the defendant obtained employment at United Nuclear in New Haven.   The defendant worked at United Nuclear until the facility closed in 1991.

In 1993, the defendant was offered employment at Catholic University in Washington D.C. as a radiation health physicist director.   At that time, the parties' youngest daughter, Jeannine, was accepted as a student at Catholic University.   The defendant accepted the employment at Catholic University because as an employee of the University, the parties received tuition reduction for their daughter.

The defendant rented an apartment in Washington D.C., and the plaintiff remained in Connecticut at the marital home.   They visited each other about two times per month.   In 1997 the plaintiff was able to obtain a transfer from her Hartford employer to the greater Washington D.C. area.   The parties lived together in a home in Maryland.   While the parties resided in Maryland, their four children were adults.   Their son, Randall, lived in, and cared for, the marital home in Connecticut.

In 2003, the plaintiff retired from Aetna and stayed in Washington D.C. with the defendant.   In 2005, the defendant retired from Catholic University and the parties moved back into the marital home in Connecticut.

In 2005, the parties' youngest daughter, Jeannine Childree, began to see changes in her father's behavior.²  She noticed that the defendant became more forgetful and needed to use written notes to remember things.   She also noticed that his office was uncharacteristically messy.   This was surprising to her because the defendant was an extremely organized person.   Ms. Childree discussed with the plaintiff that the defendant was exhibiting signs of dementia.   The plaintiff responded by stating that that was the reason why he was pushed out of his employment.   At this time, however, the defendant was still managing the family finances and was able to perform daily activities.

Upon the parties' return to Connecticut in 2005, the defendant established a doctor-patient relationship with Dr. Carl Koplin.³  The defendant first saw Dr. Koplin on May 30, 2006.   Dr. Koplin treated the defendant as a new patient and conducted a general examination of the defendant.   Dr. Koplin noted that the defendant reported a family history of Alzheimer's disease.   Dr. Koplin did not have any concerns at the time.

Dr. Koplin next saw the defendant on May 16, 2007.   Dr. Koplin noted that the defendant was alert and “oriented x 3” with no impairment of recent or remote memory.   The defendant appeared alert, cooperative and well groomed.   There were no signs of acute distress.

Ms. Childree, however, continued to notice the defendant's mental deterioration.   She was concerned about the defendant's appearance.   He appeared unkempt.   The defendant was normally well groomed.   She began to notice that the defendant would dress inappropriately for the seasons.   He would wear long-sleeve flannel shirts with a sweater in 80–degree weather.   Even the plaintiff noticed that the defendant was acting irrationally.   According to the plaintiff, the defendant would wake up late at night and want to go for walks.

Ms. Childree arranged to have Dr. Koplin examine the defendant.   The reason for the visit was to address the defendant's memory impairment.   On January 12, 2009, Dr. Koplin examined the defendant.   The defendant reported to Dr. Koplin that his memory impairment had been occurring in a persistent pattern for years.   Dr. Koplin noted that although the defendant was oriented to person, he possessed a lack of insight concerning matters relevant to “self” and the defendant lacked judgment regarding everyday activities.   Dr. Koplin further noted that the defendant suffered from normal, global orientation impairment and short-term memory impairment.   The defendant was unable to recall the president or the president-elect.   He was unaware of current events and unable to perform basic computations.   Dr. Koplin's assessment was that the defendant suffered from dementia, senile, uncomplicated.

On January 22, 2009, the defendant had a follow-up visit with Dr. Koplin.   During this examination, the defendant complained of stress with his wife.   The defendant reported that the plaintiff would ask him “why are you still alive.”   A representative from Dr. Koplin's office witnessed these remarks.   During the January 22, 2009, visit the defendant was oriented and alert;  however, his concentration was impaired and he was unable to follow multi-step instructions.

After the January 22, 2009, visit with Dr. Koplin, Ms. Childree took the defendant to her house and the defendant never returned to the marital home.

On January 30, 2009, the defendant was examined by Dr. Harry Morgan.⁴  The reason for the referral was to assess the defendant's capacity for decision making regarding financial and personal affairs as well as to assess his psychiatric capacity.   Dr. Morgan met with the defendant alone for about 45 minutes and found the defendant to be in great emotional distress.   The defendant appeared restless, lost, and distressed about his own social situation.   The defendant was extremely frightened of the plaintiff and felt unsafe in his own home.   The defendant appeared “tremulous” and quite tearful to Dr. Morgan when the plaintiff described the way he felt he had been treated by his wife.   The defendant was pleased that he was not living with his wife and felt safe in Ms. Childree's home.   The defendant was concerned over his finances.

Dr. Morgan found the defendant to be alert and very pleasant.   The defendant, however, was not capable of providing much social and family history.   The defendant could not provide any information about the defendant's financial situation.   As part of Dr. Morgan's evaluation of the defendant, Dr. Morgan reviewed a medical assessment performed by Dr. Adam Silverman of The University of Connecticut Health Center.   In March of 2005, Dr. Silverman noted the defendant had memory loss and it was suspected at that time that the defendant suffered from early Alzheimer's dementia.   According to Dr. Morgan, the defendant clearly suffered from Alzheimer's dementia on January 30, 2009.   The defendant's dementia existed at least two to three years prior to a formal diagnosis.   In Dr. Morgan's opinion, the defendant had a substantial degree of Alzheimer's dementia in December 2007.   According to Dr. Morgan, the defendant may have even been impaired as far back as seven years prior to the January 30, 2009 evaluation.   Dr. Morgan recommended that there be an involuntary conservator of both the person and estate.

On February 4, 2009, Dr. Koplin submitted to the Court of Probate for the District of Tolland (hereinafter referred to as “Probate Court”) a physician's evaluation.   Dr. Koplin indicated that the defendant was diagnosed with senile dementia.   Dr. Koplin indicated that the stage of the disease was moderate to severe.   According to Dr. Koplin, the defendant was unable to handle money, drive, or follow simple directions.   Dr. Koplin stated that the defendant had no idea about savings or financial matters and that the defendant was disoriented as to time, place, date, year and season.

Based in part on Dr. Koplin and Dr. Morgan's evaluations, the Probate Court appointed Jeannine Childree, Temporary Conservator of the Person, and Jennifer Dearborn, Temporary Conservator of the Estate, on February 18, 2009.

On July 17, 2007, nineteen months prior to the Probate Court order, the plaintiff and the defendant met with a financial advisor at the New Alliance Bank, Mr. David Yaffee.   The purpose of the meeting was to open a brokerage account to deposit stock certificates the parties owned.   On July 16, 2007, Mr. Yaffee received an e-mail from another New Alliance Bank representative, Hesper Verham, informing Mr. Yaffee of a meeting that was scheduled for the next day, on July 17, 2007, between Mr. Yaffee and the parties.   In the July 16, 2007 e-mail, Ms. Verham warned Mr. Yaffee that “they are a little out there!   Gloria seems to take care of everything, I think Donald may have somthing [sic] wrong with him.” ⁵  Mr. Yaffee suggested that the parties execute a General Durable Power of Attorney designating the plaintiff as the attorney in fact.   The Power of Attorney was prepared by Mr. Yaffee, and on September 7, 2007, the parties executed it before a notary public and in the presence of Mr. Yaffee.

On September 7, 2007, the parties' assets totaled $812,557.91.⁶  The parties' liquid assets totaled $525,757.91.   The defendant had the following assets in his name only:  two Navy Federal Credit savings accounts totaling $951.58;  one Navy Federal Credit checking account with a balance of $21,477.53;  two Navy Federal Credit IRAs totaling $7,367.40;  a Midland/New York Life Annuity in the amount of $91,861.61; ⁷  BISYS Retirement account totaling $334,724.15 (The Hartford Variable Annuity, hereinafter referred to as “The Hartford account”);  a New Alliance Investment Inc. Securities Portfolio totaling $23,318.96;  various stocks totaling $42,703.00;  and U.S. Savings Bonds totaling $1,100.00.   The plaintiff had in her name only a New Alliance checking account with a balance of $2,253.68.

The parties had $286,800.00 in additional assets on September 7, 2007.   They owned a home located at 11 White Birch Drive, Tolland, Connecticut, valued at approximately $198,000.00; ⁸  the plaintiff had a one-half interest in a lake home located at 497 Deepwood Drive, Lebanon, Connecticut with an estimated value of $39,000.00; ⁹  the plaintiff had an Aetna Annuity valued at $45,000.00;  and one Nissan automobile valued at $4,800.00.

As of February 18, 2009, when the Probate Court ordered the Temporary Conservators, the marital liquid assets were reduced to $108,358.12.¹⁰  The marital liquid assets as of February 18, 2009, were the following:  defendant's two Navy Federal Credit savings accounts with a combined balance of $14.62;  defendant's Navy Federal Credit checking with a balance of $55.40;  defendant's two Navy Federal Credit IRA $7,528.47;  defendant's New York Life Annuity with a value of $91,861.61;  plaintiff's New Alliance checking account with a balance of $315.90;  and $1,100 in U.S. Savings Bonds.

As of February 18, 2009, the parties had $241,800 in additional assets.   They included:  the 11 White Birch Drive, Tolland, Connecticut, valued at approximately $198,000.00;  the plaintiff had a one-half interest in the Lebanon lake home with an estimated value of $39,000.00;  and one Nissan automobile valued at $4,800.00.

The plaintiff began dissipating the marital assets immediately after she obtained the Power of Attorney on September 7, 2007.   On September 14, 2007, the plaintiff sold stocks valued at $20,000.00 and deposited the proceeds in her New Alliance checking account.   On October 2, 2007, she sold more stocks valued at $12,500.00 and deposited the proceeds in her New Alliance checking account.   On November 1, 2007, the plaintiff sold the remaining stock valued at $10,335.00 and deposited the proceeds in her New Alliance checking account.

From January 2008 to January 2009, the plaintiff spent the defendant's entire The Hartford Variable Annuity account.   On January 8, 2008, there was a partial surrender from The Hartford account in the amount of $37,853.49 minus fees and taxes netting $30,000.00.   The $30,000.00 was deposited in the plaintiff's New Alliance account.   On April 25, 2008, there was another partial surrender from The Hartford account in the amount of $55,000.00 less fees and taxes netting $46,990.00.   The $46,990.00 was deposited in the plaintiff's New Alliance account.   On August 22, 2008, there was a partial surrender from The Hartford account in the amount of $90,000.00 less fees and taxes netting $67,500.00.   The $67,500.00 was deposited in the plaintiff's New Alliance account.   On October 14, 2008, there was another partial surrender from The Hartford account in the amount of $60,000.00 less fees and taxes netting $45,000.00.   There is no evidence indicating where the $45,000.00 was deposited.   On January 30, 2009, there was a final surrender from The Hartford account in the amount of $26,979.22.   The $26,979.22 was deposited in the plaintiff's New Alliance checking account.   On January 29, 2009, The Hartford account had a balance of $0. The plaintiff realized, after taxes and surrender fees, $216,469.22.

On October 16, 2008, the plaintiff entered into a business partnership with Mr. Kevin Sterling, a friend to the parties' son.   The agreement consisted of opening a discount cigarette store in New Haven, Connecticut.   The plaintiff invested $10,000.00.   Vending machines were purchased for the business;  however, they were never placed in operation.

From September 7, 2007, when the plaintiff was granted Power of Attorney, through February 18, 2009, when the Probate Court ordered the Temporary Conservators, the marital assets were depleted by approximately $417,616.00.   On January 3, 2011, the plaintiff submitted to the Probate Court an accounting.   The accounting lists the expenditures as follows:  Auto repair, $2,184.28; ¹¹  Bank fees, $2,361.71;  Cash, $88,415.00;  Navy Federal Credit Union $26,046.82 (withdrawals and bank fees);  Clothing, $3,573.15;  Credit cards, $86,621.54;  Entertainment, $675.27;  Food/Grocery, $6,227.27;  Gifts, $1,971.62;  Gym $1,143.25;  Home appliances, $1,943.36;  Home electronics, $756.51;  Home repair/maintenance, $22,327.66;  Department stores, $2,538.14;  Jewelry $3,201.30;  Legal fees, $3,703.00;  Medical insurance, $8,720.88;  Pharmacy, $1,189.60;  Medical services, $14,341.99;  Randall Luster, $49,434.67;  Surrender fees and penalties, $40,027.74;  Taxes, $24,866.40;  Telephone $4,672.21;  Travel, $2,967.24;  Misc/unknown, $5,445.37;  Cable/internet, $1,083.39;  Electric, $3,746.77;  Home oil, $6,831.60.

The accounting submitted to the Probate Court is extremely vague.   It lacks any details regarding how $49,434.67 was used by or spent by the parties' son, Randall Luster.   It lacks detail on how $22,37.66 was used for home repairs or to which home the repairs were made.¹²  The accounting does not provide any details as to why or on what an additional $86,621.54 was spent using credit cards.   The accounting lists a total of $88,415.00 in cash expenditures.   That is an unbelievable amount of cash spent in seventeen months without any explanation whatsoever.   Those three categories alone account for $224,471.21.¹³

On April 20, 2009, the Conservators of the defendant brought a legal action against New Alliance Bank alleging, inter alia, forgery and statutory theft.   On July 17, 2009, New Alliance Bank filed a Third–Party Complaint against the plaintiff.   These two cases were settled for $100,000 paid entirely by New Alliance Bank. The $100,000 was disbursed to the Conservators in two separate equal payments over the course of two years.   The Probate Court approved the settlement.   The proceeds from the settlement are part of the marital estate.

Even after the Probate Court terminated the General Power of Attorney on March 18, 2009, the plaintiff used it in October 2009 to file income tax returns.   The plaintiff admitted using the Power of Attorney in error and filed a corrected income tax return.

The plaintiff's March 9, 2011, financial affidavit shows net income of $521.58.   She has a net weekly wage of $230.89 from her part-time job as an office assistant.   She receives Social Security benefits in the amount of $183.58 per week and $69.53 from an Aetna Pension.   The Aetna Pension is valued at $45,000.   The plaintiff receives $46.51 in food stamps.   She has $400.00 in weekly expenses.   The plaintiff has two New Alliance Bank checking accounts with an unknown balance.   The plaintiff has a 2000 Nissan Altima valued at $4,800.00.   She does not list any value for other personal property;  however, the evidence at trial clearly shows that she spent great sums of money on jewelry and that she purchased unknown items using credit cards totaling $86,621.54.   She owns a one-half interest in a candy/cigarette vending machine business with an unknown value.   The plaintiff has $141,579.14 in liabilities including $85,746.14 in attorneys fees as of February 23, 2011.¹⁴  She has a half interest in the 497 Deepwood Drive, Lebanon, Connecticut lake home that she owns jointly with her son valued at $39,000.00.

The defendant's February 2, 2011, financial affidavit shows a total net weekly income of $526.13.   He receives Social Security in the amount of $407.28 and $118.85 from his New York Life Annuity.   The New York Life Annuity is valued at $75,874.91.   He has a total of $584.74 in weekly expenses.   The defendant has a Webster Bank account with a balance of $20,400.00.   He also has U.S. Savings Bonds with a face value of $1,930.   The defendant has approximately $3,904.58 in credit card debt, a 2010 Federal Income Tax liability of $8,285.00 and a 2010 CT State Income Tax liability of $3,009.00 He also has $144,947.62 in attorneys fees and costs as of March 8, 2011.¹⁵

The marital home located at 11 White Birch Drive in Tolland, Connecticut is approximately valued at $229,000.   There is a mortgage lien on the property to the Town of Tolland in the amount of $30,807.50.   There is also a mortgage lien to I. David Marder and Associates securing a Promissory Note in the amount of $30,000 at 12 percent interest rate for attorneys fees.

Under Connecticut General Statutes § 46b–81, at the time of entering a decree annulling or dissolving a marriage or for legal separation, the Court may assign to either the husband or the wife all or any part of the estate of the other.  “The Court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, ․” Conn. Gen.Stat. § 46b–81.¹⁶  When determining the allocation of assets between spouses in a dissolution proceeding, the Court is allowed to determine whether a spouse's actions that occur prior to the spouses' physical separation constitute the dissipation of marital assets.  Shaulson v. Shaulson, 287 Conn. 491, 476, 949 A.2d 468 (2010).   However, “in order for a transaction to constitute dissipation of marital assets for purposes of equitable distribution under Conn. Gen.Stat. § 46b–81, it must occur either:  (1) in contemplation of divorce or separation;  or (2) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown.”  Id., at 479.

Here, it is clear that the plaintiff knew the defendant to be in a compromised mental state.   The defendant was suspected of having dementia as early as March 2005.   On September 7, 2009, the plaintiff obtained a General Power of Attorney while the defendant was suffering from dementia.   The marriage was in serious jeopardy at that time.   The plaintiff's own pleadings admit that the marriage had been undergoing an irretrievable breakdown.   Just five days after the Probate Court ordered the conservatorships, the plaintiff filed for a legal separation.   The plaintiff's actions from September 7, 2007 through February 18, 2009, clearly constitute a dissipation of assets.

II ORDERS

After considering all the statutory criteria set forth in Connecticut General Statute sections 46b–62 as to orders for payment of attorneys fees;  46b–66a as to conveyance of real property;  46b–81, as to assignment of property and transfer of title;  46b–82, as to the award of alimony;  together with applicable case law and the evidence presented here, the court hereby enters the following orders:

Legal Separation

A decree of legal separation shall enter, on the grounds of irretrievable breakdown.

Alimony

The plaintiff shall pay one dollar per year to the defendant for life.   The defendant shall not pay alimony to the plaintiff.

Settlement from New Alliance Legal Action

All proceeds from the New Alliance Legal Action shall be the sole property of the defendant.

Real Property

The defendant shall Quit Claim all his rights, title and interest in and to the family home located at 11 White Birch Drive, Tolland, Connecticut.   The plaintiff shall grant the defendant a mortgage and a promissory note on the 11 White Birch Drive, Tolland, Connecticut, property in the amount of $140,000.00.   The interest rate of this mortgage and note shall be at three percent (3%).   The promissory note is due and payable within two (2) years of date of judgment or upon the sale or refinance of the property whichever is earlier.   The plaintiff's mortgage to I. David Marder & Associates, LLC shall be subordinated to the defendant's interest.   The plaintiff shall be solely liable for all the taxes, maintenance, insurance, utilities and shall hold the defendant harmless therefrom.   The plaintiff's attorneys shall prepare within ten days the necessary documents to effectuate this order.

The plaintiff owns a one-half interest on a property located at 497 Deepwood Drive, Lebanon, Connecticut.   The plaintiff shall grant the defendant a mortgage and a promissory note on the 497 Deepwood Drive, Lebanon, Connecticut property in the amount of $25,000.00.   The interest rate of this mortgage and note shall be at three percent (3%).   The promissory note is due and payable within five (5) years of date of judgment or upon the sale or refinance of the property whichever is earlier.   The plaintiff's attorneys shall prepare within ten days the necessary documents to effectuate this order.

Credit Cards

The plaintiff shall be solely responsible for the credit cards listed on her financial affidavit and shall hold the defendant harmless therefrom.

The defendant shall be solely responsible for the credit cards listed on his financial affidavit and shall hold the plaintiff harmless therefrom.

Debt

Except as otherwise ordered above, plaintiff shall be solely responsible for the debts showing on her financial affidavit dated March 9, 2011, and shall hold the defendant harmless therefrom.

The defendant shall be solely responsible for the debts showing on his financial affidavit dated February 2, 2011, and he shall hold the plaintiff harmless therefrom.

Motor Vehicles

The plaintiff shall keep as her sole property the 2000 Nissan Altima listed in her financial affidavit.   She shall hold the defendant harmless and indemnified for taxes, registration, and insurance for said vehicle.

The parties shall cooperate with each other to execute any and all necessary documents to facilitate the transfer of said vehicle.

Health Insurance

Each party shall be responsible for their respective health insurance.

Personal Property

The following personal property shall be transferred to the defendant within thirty days from date of judgment and they shall be the sole property of the defendant:

1. Cedar Hope Chest;

2. Grandfather Clock;

3. Oil painting with man on ladder repairing light fixture;

4. Defendant's binoculars;

5. Picture albums containing the defendant's parents, the defendant as a child, and the defendant with his children;

6. A Black Johns Hopkins University mug from defendant's graduation.

The plaintiff shall keep as her sole property the candy/cigarette vending machines, her jewelry and the remaining furniture.

Bank Accounts

The parties shall each retain their own bank accounts.

Pension, IRA and Retirement Assets

The plaintiff shall keep as her sole property the Aetna Annuity listed on her financial affidavit.

The defendant shall keep as his sole property the New York Life Annuity and the U.S. Savings Bonds listed on his financial affidavit.

Taxes

To the extent that there is a refund for the tax year 2008, pursuant to the defendant's tax appeal, the refund shall be the property of the defendant.   The parties shall file separate tax returns.

Attorneys Fees

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

Pursuant to Connecticut Practice Book § 25–59B, counsel for the plaintiff shall remove any and all identifying information from the exhibits she introduced at trial within thirty days of judgment.   Counsel for the defendant shall remove any and all identifying information from the exhibits he introduced at trial within thirty days of judgment.

III. PENDING MOTIONS

The following motions remain unaddressed:

1. Motion for Contempt and Attorneys Fees dated February 18, 2011.

The defendants allege that the plaintiff violated the Court's Automatic Orders pursuant to Practice Book Section 25–5(a)(7) by allowing the existing supplemental insurance of the defendant to terminate.

2. Motion for Contempt and Attorneys Fees dated March 8, 2001.

The defendant alleges that the plaintiff violated an order issued by the Court on May 27, 2009, ordering the plaintiff to pay the real estate taxes as they became due on the marital property.

Both motions will be addressed simultaneously.

Discussion and Findings.

A. Contempt

In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001).   Civil contempt may be found only upon a clear and unambiguous court order.  Dowd v. Dowd, 96 Conn.App. 75, 79, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).   Contempt is committed when a person violates an order of the court which requires that person in specific and definite language to do or refrain from doing an act or series of acts.  In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007).   A contempt remedy is particularly harsh and it may be founded solely upon some clear and expressed direction of the court.  Id. “Noncompliance alone will not support a judgment of contempt.”  Bowers v. Bowers, 61 Conn.App. 75, 81, 762 A.2d 515 (2000).   A court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful.  Wilson v. Wilson, 38 Conn.App. 263, 275–76, 661 A.2d 621 (1995).   The inability of the defendant to obey an order of the court, without fault on his part, is a good defense to a charge of contempt.  Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974).   It is the non-movant's burden to prove his inability to comply with a valid court order.

The Court hereby incorporates by reference the findings set forth in section I of this memorandum.

The Court further finds that Automatic Orders pursuant to Connecticut Practice Book Section 25–5(a)(7) entered on March 3, 2009.   The Automatic Orders clearly state that “Neither party shall cause the other party ․ to be removed from any medical, hospital, and dental insurance coverage, and each party shall maintain the existing medical, hospital, and dental insurance coverage in full force and effect.”   The plaintiff caused the lapse of the existing medical coverage for the defendant.   The Court finds that the violation was willful.

The Court further finds that on May 27, 2009, the Court ordered the plaintiff to maintain the real estate taxes on the marital property.   The Court finds that the order is clear.   The plaintiff attempted to seek relief from the Town of Tolland by making an application for tax deferral on August 19, 2010.   The Court finds that the violation of the Court's order was not willful under the circumstances.

Under the totality of the circumstances of this case, the Court will not find the plaintiff in contempt of court.

WHEREFORE, the Motion for Contempt and Attorneys Fees dated February 18, 201 is hereby:  DENIED

The Motion for Contempt and Attorneys Fees dated March 8, 2001 is hereby:  DENIED

3. Motion for Sanction and Attorneys Fees dated March 8, 2011.

The defendants filed a motion for sanctions and attorneys fees alleging that the attorneys for the plaintiff submitted to the Court an accounting that was so incomplete and inaccurate as to be false and misleading.

The Court hereby incorporates by reference the findings set forth in section I of this memorandum.

The Court finds that the accounting is without a doubt vague.   The Court further finds that the attorneys for the plaintiff admitted in their briefs that the accounting contained mathematical errors.   The Court does not find that the plaintiff's attorneys willfully and intentionally submitted a false accounting to this Court.

WHEREFORE:  the defendant's Motion for Sanctions and Attorneys Fees dated March 8, 2011 is hereby:  DENIED.

Suarez, J.

FOOTNOTES

FN1. For the purpose of this memorandum, the Court will refer to Mr. Donald Luster as the defendant and to Ms. Childree and Ms. Dearborn by name or Conservators..  FN1. For the purpose of this memorandum, the Court will refer to Mr. Donald Luster as the defendant and to Ms. Childree and Ms. Dearborn by name or Conservators.

FN2. Ms. Childree has a Bachelor's Degree in nursing and is a nurse at UCONN Health Center..  FN2. Ms. Childree has a Bachelor's Degree in nursing and is a nurse at UCONN Health Center.

FN3. Dr. Koplin is now a retired family physician who has been licensed in Connecticut since 1986.   Dr. Koplin graduated from Temple University School of Medicine in 1983 and completed his residency in Akron, Ohio in 1986, specializing in family medicine.   In 1986 he joined an established medical practice in Rockville, CT..  FN3. Dr. Koplin is now a retired family physician who has been licensed in Connecticut since 1986.   Dr. Koplin graduated from Temple University School of Medicine in 1983 and completed his residency in Akron, Ohio in 1986, specializing in family medicine.   In 1986 he joined an established medical practice in Rockville, CT.

FN4. Dr. Morgan graduated from Harvard Medical School and completed his residency at the University of Cincinnati.   He was the director for Geriatric Psychiatry at the Institute of Living.   He currently works at the Center for Geriatric and Family Psychiatry, Inc. He has over 20 years experience in Geriatric Psychiatry..  FN4. Dr. Morgan graduated from Harvard Medical School and completed his residency at the University of Cincinnati.   He was the director for Geriatric Psychiatry at the Institute of Living.   He currently works at the Center for Geriatric and Family Psychiatry, Inc. He has over 20 years experience in Geriatric Psychiatry.

FN5. Exhibit, 8..  FN5. Exhibit, 8.

FN6. The $822,029.00 total assets as of September 7, 2007, do not include miscellaneous jewelry, furniture and personal items..  FN6. The $822,029.00 total assets as of September 7, 2007, do not include miscellaneous jewelry, furniture and personal items.

FN7. The Midland Life Annuity was transferred to New York Life on May 27, 2008..  FN7. The Midland Life Annuity was transferred to New York Life on May 27, 2008.

FN8. Tolland home is approximately valued at $229,000.00;  however, the Town of Tolland has a $30,800.50 home improvement lien that is due and payable upon the sale of the property.   On November 4, 2009, the plaintiff granted to her attorney, David Marder, an Open–End Mortgage Deed to secure payment of $30,000 with 12% interest..  FN8. Tolland home is approximately valued at $229,000.00;  however, the Town of Tolland has a $30,800.50 home improvement lien that is due and payable upon the sale of the property.   On November 4, 2009, the plaintiff granted to her attorney, David Marder, an Open–End Mortgage Deed to secure payment of $30,000 with 12% interest.

FN9. The plaintiff owns the Lebanon lake house jointly with the parties' son, Randall.   The property was purchased by Randall from the proceeds of an automobile accident.   On September 14, 1998, Randall Quit Claimed one-half interest in the property to the plaintiff.   The $39,000.00 value of the lake home is the plaintiff's one-half interest in the lake home..  FN9. The plaintiff owns the Lebanon lake house jointly with the parties' son, Randall.   The property was purchased by Randall from the proceeds of an automobile accident.   On September 14, 1998, Randall Quit Claimed one-half interest in the property to the plaintiff.   The $39,000.00 value of the lake home is the plaintiff's one-half interest in the lake home.

FN10. The $108,358.12 total does not include miscellaneous jewelry, furniture and personal items..  FN10. The $108,358.12 total does not include miscellaneous jewelry, furniture and personal items.

FN11. The automobile repairs were mostly for Randall's car..  FN11. The automobile repairs were mostly for Randall's car.

FN12. The plaintiff testified that there were repairs done on the Lebanon lake home.   According to the plaintiff, money was spent on repairs to the Lebanon lake home including;  new well, flooring, heating, painting, windows, new bathroom, septic.   There was also testimony given that repairs were made to the 11 White Birch Drive home..  FN12. The plaintiff testified that there were repairs done on the Lebanon lake home.   According to the plaintiff, money was spent on repairs to the Lebanon lake home including;  new well, flooring, heating, painting, windows, new bathroom, septic.   There was also testimony given that repairs were made to the 11 White Birch Drive home.

FN13. Even after reviewing all of the 218 combined exhibits, it is impossible to determine where all this money has gone..  FN13. Even after reviewing all of the 218 combined exhibits, it is impossible to determine where all this money has gone.

FN14. The $85,746.14 in attorneys fees includes the attorney's representation on the legal separation action, the appeal, the New Alliance action and the Probate Court action..  FN14. The $85,746.14 in attorneys fees includes the attorney's representation on the legal separation action, the appeal, the New Alliance action and the Probate Court action.

FN15. The $144,947.62 includes work performed on the legal separation action, including the appeal, and the Probate Court action..  FN15. The $144,947.62 includes work performed on the legal separation action, including the appeal, and the Probate Court action.

FN16. Pursuant to Conn. Gen.Stat. § 46b–81(c), in fixing the nature of the value of the property, if any, to be assigned, the court “shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”.  FN16. Pursuant to Conn. Gen.Stat. § 46b–81(c), in fixing the nature of the value of the property, if any, to be assigned, the court “shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

Suarez, José A., J.