Thomas Fonti v. Maureen Fonti (2011)

MEMORANDUM OF DECISION

After 30 years of marriage, two children, a nice home in the suburbs, and the accumulation of more than a million dollars in assets, a husband announces he has been unhappy for several years, has found another woman, and wants to leave the marriage.   What price must be paid for his freedom in such circumstances?

The parties were married on September 11, 1981 and separated on April 23, 2010.   On April 27, 2010, the Husband instituted this action claiming a dissolution of marriage, an equitable distribution of the parties assets, and other equitable relief.   The Wife filed an answer and cross-complaint making essentially the same claims as the Husband with the addition of a claim for alimony.   Over three days, on July 19, 20, and 26, the issues were thoroughly presented to the court by competent counsel.

Two children were born to the Wife, issue of the marriage, both of whom are now adults.   The 29–year–old daughter is employed and the 26–year–old son is in the U.S. Marines.   Both make the marital residence their home but essentially are on their own.

The Husband is 60 years of age, a high school graduate, and in generally good health.   He has been employed by the Connecticut Light & Power Company as a chief stock handler for 35 years, since approximately 5 years before his marriage.

On his financial affidavit, the Husband's gross income from employment was represented to be $1,390.00 per week ($72,280.00 per year) and net income $601.00.   If his 401k contribution of $337.00 per week is added, his net income would be $938.00 per week.   Furthermore, the evidence indicates that from time to time he receives overtime pay which increases his income considerably.   A review of his last three years of IRS tax returns indicates a gross of $78,193 in 2010, $74,020 in 2009, and $78,315.00 in 2008.   His most recent pay stub for 2011 shows year to date earnings that, if annualized, would be $82,784.00.   The court finds that he has an income capacity of at least $78,000.00 per year.

In addition to his weekly income, his employer furnishes him with medical, dental, and life insurance benefits with a requirement that he contribute to the expense via a pay roll deduction.   As of 02/28/11 he had acquired a vested pension benefit at retirement of $2,603.49 per month.

The Wife is 55 years of age, a high school graduate, and is in generally good health.   She has been employed as a secretary by the State of Connecticut for thirty-five years, some of it part-time.   On her financial affidavit, she shows her gross income to be $1,071.00 per week ($55,692.00 per year) and $659.00 per week net.   If her pension and ING deductions of $84.00 per week are added, her net income would be $743.00 per week.

In addition to her weekly income, her employer furnishes her with medical and dental benefits with a requirement that she contribute to the expense via a payroll deduction.   As of 02/28/11 she had acquired a vested pension benefit at retirement of $2,633.44 per month, subject to a plan B social security offset reduction of $112.00 per month.

The assets ¹ of the parties, as shown on their affidavits and in the evidence, are found to be as follows:

ASSET OWNERSHIP EQUITY

15 Georgetown Drive, J $275,000

Watertown ($325,000 less

HELOC $50,000=$275,000)

2002 Volvo W $ 4,200

2006 BMW W $ 14,107

2006 Lexus H $ 17,000

Furniture/Furnishings J $ 6,000

CSE Credit Union checking W $ 1,108

Litchfield Bank checking W $ 18,930

Webster Bank (3 accounts W $ 4,805

․ 2297, ․ 2237, ․ 7976)

1st Investors mutual funds J $ 57,091

Webster Bank checking H $ 21,800

NUSCO 401k retirement H $254,952

1st Investors IRA W $ 6,200

ING Annuity W $ 12,214

1st Investors Annuity J $ 26,750

1st Investors IRA H $ 6,883

CSE Credit Union savings W $ 11,428

TOTAL ASSETS $738,468

(excluding pensions)

The entry of the orders which follow give full consideration to the following facts which impact some of the assets described above.   The Husband earned a portion of his NUSCO pension (see Plaintiff's Exhibit 5) during the five years prior to the marriage and had some other minor assets which he may have brought into the marriage.   Likewise, the Wife earned a portion of her pension (see Plaintiff's Exhibit 6) during the five years prior to the marriage and had some other minor assets which she may have brought into the marriage.   During the marriage, the Wife was involved in two automobile accidents which together netted her approximately $158,313.00.   Some of the money was used to help in the purchase of the marital residence and some invested in various financial instruments.   The Wife received inheritances, gifts, financial and other assistance from her family during the marriage.   The Husband also received such assistance from his family but to a much lesser degree.

There was also considerable testimony and other evidence regarding repairs made to the residence, violation of automatic orders, removal of cash secretly stored in the residence, manipulation of checking and savings accounts, unauthorized liquidation of a life insurance policy, a substantial gift of money to their adult daughter, purchase of automobiles, and the unilateral withdrawal of money from the Home Equity Loan Account.   There were recriminations flying back and forth regarding those and other such matters, all of which were considered by the court.

The liabilities of the parties, who appeared to be frugal in their life style, are very modest and are shown on each financial affidavit.

It would serve no useful purpose to chronicle the causes for the breakdown of the marriage which appears to be irretrievable.   The Husband claimed that the Wife stopped any communication, ceased having a physical relationship with him, and stopped doing things with him such as attending family functions, going on vacations, eating meals at home, going out to dinner, or even sleeping in the same bed.   He said he was reluctant to do anything about what he claimed was a dysfunctional marriage because their son and daughter were in college, later on the son enlisted in the Marines and ultimately was deployed to Iraq. According to him, it was not a good time to end the marriage.   During her testimony, the Wife claimed that the Husband gradually withdrew from the marriage, became uncommunicative, refused to go to counseling, and ultimately became involved with another woman.   She tried to have him reconsider his actions but he refused.   While there are two sides to problems in every marriage, and perceptions frequently vary, suffice it to say that on balance the Wife's claims were more credible.

The court, after listening to the parties and reviewing all of the evidence, finds that residence requirements have been satisfied and neither party has been the recipient of public assistance.   All pertinent criteria outlined in Chapter 815 of the General Statutes as well as applicable case law were considered by the court in the entry of the following orders.

ORDERS

DISSOLUTION OF MARRIAGE

The marriage is dissolved on the grounds of an irretrievable breakdown.

ALIMONY

The Husband shall pay periodic alimony to the Wife in the amount of $200.00 per week pursuant to an immediate wage withholding order.   Said alimony shall be payable until the death of either party, the Wife's remarriage, her cohabitation as defined in our law, or until modified by court order pursuant to statute.   The alimony shall be subject to review upon his retirement.

As additional periodic alimony, each party is awarded one dollar per year as alimony for the sole purpose of insuring that the equal pension division as hereinafter described takes place as ordered.   If for any reason a plan administrator does not honor the order, then this one dollar per year order is subject to modification in order to protect the integrity of pension division as ordered.

LIFE INSURANCE

The Husband shall name the Wife sole beneficiary on his group life insurance, in the current approximate amount of $140,000.00, so long as he has any obligation for alimony.   This paragraph shall be subject to modification.

MEDICAL INSURANCE

Each party shall be responsible for their own medical insurance and expenses.

REAL ESTATE

The Husband shall immediately quitclaim to the Wife his interest in the marital residence located at 57 Georgetown Drive, Watertown, subject to the outstanding HELOC obligation and real estate taxes which might be due and owing.   The Wife shall cause the Husband's name to be removed from the HELOC loan within 120 days from date.   The Wife shall save the Husband harmless from any and all claims regarding said property.

PERSONAL PROPERTY

Each party shall retain the furniture and personal possessions in their respective control and possession without claim from the other.

The Husband shall retain the 2006 Lexus automobile subject to any obligations due on said vehicle.

The Wife shall retain the 2002 Volvo and 2006 BMW automobiles subject to any obligations due on said vehicles.

STOCKS, BONDS, MUTUAL FUNDS, BANK ACCOUNTS

The Husband shall retain his individual Webster Bank checking account without claim from the Wife.

The Wife shall retain the joint Webster Bank checking account without claim from the Husband.

The Wife shall retain her individual CSE Credit Union checking account, individual CSE Credit Union Savings account, individual Litchfield Bancorp checking account, individual Webster Bank checking account, and individual Webster Bank savings account without claim from the Husband.

RETIREMENT ASSETS

The Husband shall assign to the Wife pursuant to a qualified domestic relations order, domestic relations order, or other appropriate instrument, a 50% interest in his NUSCO pension as of August 31, 2011.   To the extent permitted by the plan, he shall elect a survivorship benefit.   The cost, if any, for the preparation of the order shall be equally shared.   The court shall retain jurisdiction until such time as the order is approved by the plan administrator to ensure compliance with the intent of this order.

The Wife shall assign to the Husband pursuant to a qualified domestic relations order, domestic relations order, or other appropriate instrument, a 50% interest in her State Employees retirement account as of August 31, 2011.   To the extent permitted by the plan, she shall elect a survivorship benefit.   The cost, if any, for the preparation of the order shall be equally shared.   The court shall retain jurisdiction until such time as the order is approved by the plan administrator to ensure compliance with the intent of this order.

The Husband shall retain his NUSCO 401k plan and his First Investors IRA without claim from the Wife.

The Wife shall retain her First Investors Roth IRA, ING Annuity, and First Investors Annuity without claim from the Husband.

LIABILITIES

Each party shall be solely responsible for the liabilities shown on their financial affidavits except that the HELOC obligation shall be the sole responsibility of the Wife. She shall save the Husband harmless from any and all claims regarding said obligation.

COUNSEL FEES

Each party shall pay their own counsel fees.

TAXES

The Wife shall be entitled to all deductions for taxes and interest from the marital residence on her 2011 IRS and CRS tax returns.

MISCELLANEOUS

Each party shall sign any necessary documents to effectuate the orders contained herein.

Plaintiff's counsel shall prepare the judgment file, have it certified by defendant's counsel, and file it with the court within 30 days.

CUTSUMPAS, JTR

FOOTNOTES

FN1. H refers to an asset solely in the Husband's name, W to an asset solely in the Wife's name, and J to an asset in joint names..  FN1. H refers to an asset solely in the Husband's name, W to an asset solely in the Wife's name, and J to an asset in joint names.

Cutsumpas, Lloyd, J.T.R.