Dennis Lynn v. Christina Lynn (2011)

MEMORANDUM OF DECISION

The plaintiff, who was a resident of Groton, Connecticut, initiated this action for dissolution of marriage with a complaint that was returned to the court on September 14, 2010.   At the time, the defendant was a resident of Salem, Connecticut.

The court finds that it has jurisdiction and that all statutory stays have expired.

A limited contested trial was held before the undersigned on September 20, 2011.   Both parties appeared at trial and were represented by counsel.

The court has fully considered the criteria of Connecticut General Statutes (CGS) §§ 46b–81, 46b–82, 46b–84, 46b–56c and 46b–62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that the following facts were proven by a preponderance of the evidence:

1. The plaintiff and the defendant, whose maiden name was McGrath, were married on Oct. 24, 1987 on Long Island, New York.

2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.

3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.

4. There are no minor children born to the wife since the date of the marriage but there are two children under 23.

5. Neither party has received assistance from any State or local agency.

6. The parties engaged in classic, high conflict, pre-dissolution litigation regarding family matters.

7. Most of the marital estate was accumulated during the course of the marriage.

8. During most of the marriage, the husband was abusive, controlling, manipulative and authoritative to both his wife and to their children.   The husband offered no explanation of his own as to the cause of the breakdown of the marriage and baldly asserted that the credible testimony of both of his grown children was completely false.   The cause of the dissolution is found to be primarily the husband's.

9. The court finds that if this were an intact family, it is likely that the parents would have provided post-majority educational support to the children.

10. The parties separated in 2006 for approximately four months and reconciled in 2007, separating again for the final time on June 7, 2010 when the husband vacated the marital premises and relocated to their four-unit rental property in Groton where he presently resides.   The wife continues to reside in the marital residence in Salem with the 20–year–old son.   The 21–year–old daughter stays at the Salem house when she is not at Western Connecticut State University where she is completing her senior year with great success and many accomplishments.

11. The parties stipulated that each of their appraisals from each home would be admitted into evidence.   Regarding the Salem property, the husband's appraisal (Exhibit 10) valued the marital residence at $390,000.   The wife's appraisal (Exhibit B) valued the same home at $310,000.   Both appraisals were completed approximately ten months ago.   The court finds the wife's appraisal to be more reliable and accurate because the husband's appraisal incorrectly identifies the home as having been built in 2004, whereas the wife's appraisal correctly identifies the home as having been built in 1994.   In addition, the husband's appraisal describes the home as having a basement which is mostly finished, whereas the wife's appraisal more accurately describes the basement as a finished basement of 790 square feet of the 2,261 square-foot basement.   As a result, the court finds that the Salem property is appropriately valued at $310,000 with a mortgage balance of $75,000, yielding a net equity of $235,000.

12. There presently exists, as marital assets in the wife's possession, the Salem home with a $75,000 mortgage, the 2002 Honda vehicle which the daughter operates worth $5,000, the wife's Hyundai automobile valued at $18,700, the wife's personal injury lawsuit of uncertain amount, and the wife's bank account of $1,400.   The appraisals of the Groton property list that building as valued between $272,500 and $312,000.   Both appraisals appear to be similar and without any factual inaccuracies.   The court finds that $292,250, is the appropriate value.   In the husband's possession, there exists the four-family Groton rental apartment building with no mortgage, his Honda vehicle valued at $12,000, his truck valued at $3,000, his tools and furniture valued at $7,500, his 401(k) plan valued at $7,700 and his bank account valued at $3,350.

13. Thus, the assets in the wife's possession are $260,100.   The assets in the husband's possession are $326,050.   The remaining assets are the husband's New York City pension and Navy pension.

14. There was evidence that the husband and his father purchased a New York investment property before the marriage with the husband contributing $10,000 and his father contributing $90,000.   There was unconvincing evidence that the actual “deal” was that they purchased the property equally but the husband “borrowed” $40,000 from his father for his share.   The court finds the net result to be the same;  the husband contributed $10,000 of his own money prior to the marriage which was rolled over into two separate New York properties before the parties relocated to Connecticut and bought their Connecticut real estate.   The husband should be credited with $10,000 as a premarital asset.   The husband has two pensions.   He accumulated his U.S. Navy pension from 1980 until 2003 and his New York City police pension from 1985 until 2002.   Notwithstanding the fact that the New York City pension was earned, in part, with “military service credit,” the court finds that the New York City pension was accumulated almost entirely during the time of the marriage and should be divided equally.   Of the Navy pension which was earned between 1980 and 2003 or 23 years, the court finds that seven of those years are premarital and 16 of those years are marital.   Nonetheless, the court will not distribute the Navy pension.

16. The wife shows debt in the amount of $40,000 having borrowed or accumulated all of her attorneys fees.   The husband shows debt of $1,100, having paid all of his attorneys fees to date out of pocket.

17. The wife is 51 years old and the husband is 50 years old.

18. The husband, a retired Navy veteran and a retired New York City police officer, claims that he suffers from asthma as a result of the World Trade Center tragedy and of some form of heart disease.   He lost his job as a civilian security guard last year as he was apparently unable to qualify for the physical requirements of a civilian naval security guard.   He collects unemployment benefits of $480 per week which he claims to be greater than his stated earning capacity of $400 per week.   The court finds his earning capacity to be $600 per week.   In addition, the husband collects his New York City pension of $668 per week gross, rental income of $614 per week gross, a supplemental pension distribution of $12,000 per year gross and will eventually collect his Navy pension.

19. The wife works as a nurse's aid, working approximately 20 hours per week earning $250 per week.   She claims to suffer from migraines and back pain as the result of a recent motor vehicle accident.   The court finds that she has an earning capacity of $400 per week.

20. The wife has been unable to pay her attorneys fees and owes in excess of $17,000 to her attorneys as well as $20,000 to family members or friends who have lent her that money.

21. The court finds it more appropriate that the husband should continue to reside in and retain the Groton rental property and that the wife should continue to reside in and retain the Salem property.

LEGAL DISCUSSION

It is error for a court to consider the needs of the parties' adult children in the home in fashioning its award.  Loughlin v. Loughlin, 280 Conn. 632, 660 (2006).   Thus, the court's orders do not reflect the needs or desires of the adult children other than to make orders regarding their post-majority educational support.

CGS § 46b–81 states:

“In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, 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.”

The court in Lopiano v. Lopiano, 247 Conn. 356, 363–64 (1998) held:

“The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates ․ This approach to property division is commonly referred to as an ‘all-property’ equitable distribution scheme.   See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01[2][a][v], p. 37–19.  [Section 46b–81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power.   A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series:  Family Law and Practice with Forms (1991) § 27.1, pp. 398–400.”  (Emphasis in original.)  Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).

In fact, the court has the authority to assign the debts and liabilities and to order one party to assume the joint liabilities of both parties.  Bento v. Bento, 125 Conn.App. 229, 235 (2010).

The court in McKenna v. Delente, 123 Conn.App. 146 (2010) observed:

“A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties' assets.  Casey v. Casey, 82 Conn.App. 378, 386–87, 844 A.2d 250 (2004);  Werblood v. Birnbach, 41 Conn.App. 728, 735–36, 678 A.2d 1 (1996).  “[B]ecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.”  Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993).   Furthermore, “the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property.  Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).”  Roos v. Roos, 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004).   Id., 162.

The court in Krafick v. Krafick, 234 Conn. 783 (1995), held that the purpose of CGS § 46b–81 was “to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute-directly and indirectly, financially and nonfinancially-the fruits of which are distributable at divorce.”  Id., 797–98.  Ranfone v. Ranfone, 103 Conn.App. 243, 250–51 (2007).

The court in Picton v. Picton, 111 Conn.App. 143 (2008), held that “an equitable distribution of property should take into consideration [each spouse's] contributions to the marriage, including homemaking activities and primary caretaking responsibilities”;  id., 311;  and that “a determination of each spouse's contribution within the meaning of ․ § 46b–81 includes nonmonetary as well as monetary contributions.”  Id., 153.

“A court may accept or reject such evaluations in whole or in part and ascribe its own valuations to real estate ․ The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder.  Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 430–31 (1987).”  Martin v. Martin, 90 Conn.App. 145, 150 (2007).

“Trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings ․ The trial court is granted the authority, pursuant to section 46b–81, to order the sale of the marital home without any act by either the husband or the wife, when in the judgment of the court is the proper mode to carry the decree into effect.”  Martin v. Martin, 99 Conn.App. 145, 154 (2007).

CGS § 46b–82 states:

“At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b–81.   The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, 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 and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”

“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.”  Elia v. Elia, 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).

“In a marital dissolution proceeding, the court may base financial awards on earning capacity rather than actual earned income of the parties ․ While there is no fixed standard for the determination of an individual's earning capacity ․ it is well settled that earning capacity 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 ․ [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable.   Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings.”  Watrous v. Watrous, 108 Conn.App. 813, 822 (2008).

The court in Misthopoulos v. Misthopoulus, 297 Conn. 358 (2010), held that the trial court did not abuse its discretion in awarding the plaintiff attorneys fees even though she had been awarded substantial assets as a result of the other financial orders because the majority of those awards were not liquid assets and the court could not conclude that the plaintiff had ample liquid funds to pay her attorneys fees.   Moreover, the record supported a finding that the order requiring the defendant to pay a portion of the plaintiff's attorneys fees was necessary so as not to undermine the trial court's other financial orders, the record having demonstrated that the defendant had a significantly higher earning capacity than the plaintiff, and it was reasonable to presume that the trial court was attempting to equalize the amount of marital assets that were used to pay each of the parties' attorneys fees.

ORDERS

The court orders the following:

1. In view of the fact that, in addition to the New York City pension, the husband has an earning capacity of $600 per week, rental income in the amount of $614 per week and supplemental distribution from his pension of $12,000 per year or $231 per week ($1,431 per week gross), as contrasted with the wife's earning capacity of $400 per week, the court finds it fair and equitable that he shall pay alimony to the wife in the amount of $400 per week.   Moreover, he shall receive the entirety of the Navy pension of $420 per month.   Said alimony will terminate upon the earlier of the death of either, or the wife's co-habitation, remarriage or civil union.   It is modifiable as to amount only.

2. The husband shall quitclaim all of his interest in the Salem property to the wife.   She shall retain said property and be responsible for the mortgage, taxes, insurance and maintenance.   She shall hold the husband harmless and indemnify him for any losses associated there with.   She shall use her best efforts, but shall not be otherwise obliged, to refinance said property within the next 90 days or to otherwise remove him from the existing mortgage.

3. The wife shall quitclaim all of her interest in the Groton property to the husband.   He shall retain said property and be responsible for the taxes, insurance and maintenance associated therewith.   He shall hold the wife harmless and indemnify her for any losses associated there with.   He shall retain any rental income.

4. Each party will be equally responsible for the children's post-majority college or vocational education pursuant to CGS § 46(b)–56c.

5. The husband shall maintain medical and dental coverage for the children as available.

6. The husband shall retain his pickup truck and his 2010 Honda and be responsible for any loans, taxes or maintenance associated therewith.   The wife shall retain her Hyundai and 2002 Honda vehicles and be responsible for any costs, maintenance or taxes associated there with.

7. The husband shall pay to the wife the sum of $5,000 in attorneys fees to the wife's attorney at the rate of $100 per week for 50 weeks commencing November 1, 2011.

8. Each party will pay their debts on their respective financial affidavits.

9. The wife shall be entitled to any dependency tax exemptions for the children should they be available.

10. The husband shall transfer to the wife 50% of his retirement benefit under the New York City pension, valued as of the date of dissolution and adjusted for any gains or losses, including dividends payable, to the date the benefit is segregated for the wife.   The death of either the husband or the wife prior to receipt of his or her benefit shall have no effect on the benefit of the other.   The division of the benefit shall be done by way of a qualified domestic relations order (QDRO) and the cost of the QDRO shall be shared equally by both parties.

11. The husband shall keep all of his U.S. Naval pension.

12. Each shall keep their own bank accounts.

13. The husband shall transfer to the wife his ING 401(k) plan in the approximate amount of $7,700 by way of a QDRO at his own expense so as to partially equalize the property distribution which favors the husband.

14. The wife shall keep the proceeds of her personal injury case.

15. The payments and obligations referenced in these orders are intended to be family support/maintenance payments within the meaning of sections 523(a)(5) and 523(a)(15) the United States Bankruptcy Code and not dischargeable in bankruptcy.   Each party shall be solely responsible for all debts they have been ordered to pay and they shall hold harmless and indemnify the other thereon.

16. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.