Brian J. Donnell v. Karen W. Donnell (2011)

MEMORANDUM OF DECISION

This thirty-year marriage comes to the court with the parties seeking dissolution of the marriage.   Although it is a long marriage, it was deeply troubled for many years.   The evidence shows that the plaintiff believed the relationship was in serious difficulty as early as November 1994.   Despite that belief, he remained in the marital relationship for another seventeen years for the benefit of the children.

Both parties are attorneys.   The plaintiff is a successful litigator in the commercial construction area earning in excess of $400,000 per year.   The defendant practiced for several years, but left to become a full-time mother with the birth of her first child at the end of 1989.   She has not been employed outside of the home for the past 21 years.   The two children of the marriage are both in private schools.   The eldest son Michael is in his senior year at Brown University and his younger brother Sean is in his senior year at Choate in Wallingford.   Given their ages, there are no child related issues;  this case is all about the determination of a fair and reasonable spousal support and the division of the couple's assets.   Despite the fact that the case required eight days of trial, the issues are not very complicated.

The plaintiff believes that the defendant is at fault for the breakdown of the marital relationship due to her alcoholism, her unwillingness to work with him as a team and her abusive personality.   He believes that despite the fact that she has not practiced as an attorney, she still has the ability to seek employment relatively quickly in other areas and then perhaps move into a legal position in the near future.   The defendant originally testified that she is currently unable to work at all due to her alcoholism.   On the last day of the trial, however, the defendant made a new claim regarding her inability to work.   Apparently while the trial was in progress, she was being seen by two orthopedic physicians.   She went a day or two before the trial began with complaints of a sore shoulder.   After examination, the doctor sent her for further examination for problems with her lower back.   Dr. Charles B. Kime of Orthopedic Associates of Hartford, PC diagnosed her with degenerative disc disease at L4–5 and believes that she is a candidate for surgical intervention.   He also indicated that at the present time she “appears totally disabled from any functional vocational activity.”

The plaintiff vigorously objected to the introduction of this claim and its supporting evidence on the grounds that there had been absolutely no disclosure of any sort regarding present issues with the defendant's back.   The defendant acknowledges the late disclosure, but argues that this information was just developed and that they disclosed the reports instantly upon receipt.   The court ruled that the evidence could be admitted noting that all parties had already acknowledged that the defendant was not immediately employable due to her alcoholism.   Since this disclosure provides no long-term information about her employability, it does not change the immediate facts, but merely adds another element to be considered.

The plaintiff also questioned the defendant about the degree of her pain as reported in the medical reports.   Dr. Kime's report, dated September 8, 2011, indicates “Pain is rated an 8 out of 10.   The patient currently has a standing tolerance of 1 minute and has limited walking and sitting.”   He also notes, however, that during his physical examination of the defendant that there was “no overt pain behavior, mild to moderate distress.”   The court observed absolutely no indication of discomfort or pain in the defendant for the entire day of trial on September 1, 2011 or any other day prior to the final trial date of September 26, 2011.   Even on that day, the defendant showed very little indication of any physical discomfort despite the fact that she had testified that she purposely did not take any of her pain-related medications fearing that they might make her sleepy during the trial.   She sat for periods of one and a half hours at a time and walked in and out of the courtroom with no apparent difficulty.   It is certainly clear from the radiological studies that the defendant has a problem and that it may cause her to restrict her activities in the future is a real possibility, but that the problem negatively impacts her ability to work at this time is very questionable.¹  The court does not believe that she is currently unable to work due to back pain related issues.

Prior to the disclosure of the back issues, the defendant testified that it was her intention to seek employment after resolving her immediate issues with alcohol.   There was no testimony that that was not still her intention although it might take longer due to medications she claims to be taking for back pain.   Regardless of her other issues and assuming she could go to work tomorrow, she could never hope to match the earning ability of her husband given the fact that she has been out of the work force for so many years.   She believes that the parties share responsibility for the breakdown of the relationship.   While she acknowledges her drinking was a factor, she argues that the plaintiff was very controlling especially relating to the family money.²  The court finds that the defendant bears a far greater degree of fault in this matter than does the plaintiff.   It was quite clear from the testimony of all the witnesses that the defendant had only very recently come to her current honesty regarding her alcoholism;  a change that began perhaps as recently as the first day of the trial.   Prior to this recent change, she had been unwilling to accept the truth of her problem despite numerous attempts to assist her by various individuals including the plaintiff, the defendant's own family and her two sons.   The defendant was arrested for driving under the influence a few weeks prior to the start of this litigation.   It was her third arrest for such an offense.   The first such incident was in 2000 and the second in early 2009.   She did lose her driving privileges for a period of about six months in 2009 although it was not clear from the testimony whether she was actually convicted of DUI for that arrest.³  The plaintiff testified that as early as 1994 he had serious concerns about his wife's drinking and brought them to her attention.   The evidence presented to the court documented numerous very negative incidents related to the defendant's drinking over the years.   As recently as the Mother's Day holiday period this past May, her maternal family including her two sons, her parents and siblings attempted an intervention in the hopes of assisting her with this problem to no avail.

The defendant testified that after her 2009 arrest she began to attend Alcoholics Anonymous (AA) meetings.   It was her claim that she went at least three times per week to a variety of different meetings in the West Hartford area, but she also acknowledged that her attendance varied and that she continued to abuse alcohol while attending the AA meetings.   She now admits that for about the last three years she has had a more serious problem with alcohol.   The testimony offered at the trial suggests that the issue has been a significant factor in this family for far longer than the last three years.   The testimony also described a variety of incidents over the years, many involving the couple's sons, in which the defendant was intoxicated and behaved badly.   Under questioning from the plaintiff's counsel, she admitted that she becomes belligerent when intoxicated.   She also blamed her husband for not doing more to control her drinking problem.

The plaintiff was quite good at documenting his problems with his wife.   Perhaps due to his legal training or due to his frustrations with the events around him, he wrote memoranda on his computer.   The first was written to an unnamed marriage counselor and given to his wife, according to his testimony, to reach out to her and force them into counseling.   That memorandum, written in late November of 1994, marks his first clear indication of the marital problems he believed that they faced as a couple and as a family.   His description of his wife and their marriage was that of a loveless and cold relationship.   Mr. Donnell explained that he wrote the memo because all his efforts to discuss these concerns with his wife had been unsuccessful.   He complained that she simply would talk over him and not allow him to complete a thought.⁴  The memo was an effort to get it all out without interruption.

The events leading up to the memo in 1994, according to the plaintiff, were heightened for him during the construction of their new home in West Hartford.   He testified that once the defendant stopped working as an attorney and became a full time mother, she changed.   He describes her as becoming very self-centered and entitled.   Everything was about her and she was becoming a rather nasty person.   The plaintiff claimed that he was shocked and embarrassed by the way his wife dealt with the contractor and the subcontractors on their home.   In his words, “she was virtually impossible to please.”

He did acknowledge that during this period, she was raising one young child, had just given birth to their second son, and had overseen the building of and had moved into their new dream home.   He also conceded that in building his practice he worked long hours, but also claimed that this was not, in his words, “a 1950s marriage.”   He participated in the house and child rearing in a meaningful manner when he was home and his wife had some limited domestic help starting in 1989.   The defendant's testimony was that she was primarily responsible for everything related to the family and the home.   It was their arrangement so the plaintiff could build his practice and advance within the firm.

The memo effort was not productive in resolving any marital problems.   Although the defendant testified that she was “blown away” by being handed the document at the trial, apparently she was more blase about the event at her deposition.   The plaintiff's recollection of the event was that she simply picked up the phone and spent a considerable period of time speaking to her mother about it;  not to the plaintiff.   His testimony was that she never mentioned it again.   Both parties agreed that they never consulted with a marriage counselor as a result of the memo incident.   The plaintiff claimed that he left the choice of the mental health professional entirely to his wife asking only that the appointment be made with his work schedule in mind if possible.   He explained that he truly believed that if he offered an opinion as to whom they should see;  it would be instantly rejected by the defendant.   Neither the defendant nor the plaintiff made any effort to make an appointment with a therapist and the couple simply went on with their lives for a while longer.

The documentation of any marital difficulties is absent for several years, picking up again in November 1998.   No explanation was offered for why there was such a significant gap.   Things did not improve according to the plaintiff;  the couple just continued to live and to deal with the daily issues and crises of raising two young boys.   However, an incident involving an argument was the incentive the plaintiff needed to start making some journal type entries on his personal computer, the first of which was in November of 1998.   After an argument, the defendant admitted to having suffered a blackout and could not recall any of the events of the prior day's interaction.   The plaintiff testified that that incident scared both of them and he agreed not to have any alcohol in the house from that point on.   He claims that he has faithfully lived by that pledge except for small amounts for his personal consumption at times the defendant was not at home.   This is the first real documentation of any problems related to alcohol.   He also testified as to other efforts he made in an attempt to save the marriage including attending a marriage retreat the defendant refused to go—attempting to arrange more romantic situations and repeatedly urging his wife to go into some sort of rehabilitation program.   It was not successful and by June of 2004 they were in separate bedrooms and did not engage in any sort of marital relations from that point forward.

Much of the plaintiff's testimony regarding the impact of the defendant's drinking on him and the family was not challenged.   He cited work-related issues that were caused by the defendant's first arrest for DUI in 2000.   That arrest, which involved the defendant fleeing the scene and numerous police cars coming to their home searching for her, was very much public knowledge.   At that time the plaintiff was a partner in Halloran & Sage LLP, a firm he had been with since he first began to practice law in 1980.   The plaintiff believed that scandal weakened him in his firm at a time when there was a great deal of conflict regarding the direction Halloran & Sage would take.   He ultimately left the firm at the end of 2004 with a group of his associate attorneys to join a firm that would be eventually known as Thelen LLP. However, under cross-examination, he conceded that he was not seeking any damages for lost wages and could not definitively say that his wife's behavior was a major factor in the rift among the partners that eventually resulted in his leaving the firm in 2004 or that it harmed his standing in the firm.

By 2008 the difficult marriage became even worse.   The drinking and tension between the couple was then enhanced by serious financial problems related to the plaintiff's firm dissolving on very short notice.   He was able to join another firm, his current position, but his income stream had been drastically impacted by the implosion of his prior firm.   He testified, for example, that he had no actual income at all during the month of November 2008 and was not even sure that he would have a job at all.   It was the only time in his professional career that he was totally uncertain about his economic future according to his testimony.   Of course, during this upheaval he had two sons in private, high tuition schools in addition to all their normal household expenses.   The plaintiff testified that he attempted to impress the nature of the crisis on his wife and seek her assistance in the form of decreased spending and her seeking employment.   His testimony was that he received absolutely “no level of cooperation at all” from the defendant.

From that point on, the financial issues in the family began to play a more and more significant role in the disputes between the parties.   Even before the end of the Thelen firm, the plaintiff testified that he was having concerns about their rising cost of living.   According to him, the defendant blocked efforts to refinance their home mortgage to a more advantageous rate and to draw some equity to pay off some debt that the couple had been carrying.   Although no dissolution of action had been filed by either party at that time, he reported that this wife did not want to compromise their home equity situation in case of a future divorce.   Eventually they did refinance but withdrew a much smaller amount of the home's equity.   The plaintiff said that he was forced to surrender some cash value from life insurance in August of 2008 and then borrow against the insurance in 2009 all due to the defendant's unwillingness to face their financial situation realistically.   The defendant testified that she knew the marriage was in serious trouble and did not want to jeopardize her equity position in the house.   While her position is understandable, it did cost the couple to proceed the way that they did rather than to refinance for a greater equity withdrawal.

Among the plaintiff's major complaints against his wife during this time period and then into the pendency of the litigation were that she made no effort to curb her spending and that she frequently would keep the mail from him.   The latter, according to the plaintiff, resulted in finance charges, penalties and interest due to late payments being made.   He also accused her of lowering his credit score due to those late or missed payments.   The issue of the mail being delivered in a timely fashion was eventually addressed in a stipulation of the parties which was made an order of the court on September 10, 2010 (docket item # 137).   Despite that order, the plaintiff alleged that the defendant continued to withhold bills and other mail sometimes for days at a time.   The defendant during her testimony did not deny that was the case, but claimed that she never did it intentionally.   Given the long history of the allegations and the numerous correspondences back and forth on the issue, her denial lacks credibility.   The September 10th agreement was an effort to maintain peace in the house while the case was pending.   It went into considerable detail outlining what each party could and could not do in effort to respect the privacy of the other and to allow each to enjoy a reasonably calm habitation in their home.   The defendant's actions in bold and complete defiance of this stipulation and court order stand uncontested and the court is compelled to act if any court order is to have any authority with the defendant.

Regarding the spending, it was the plaintiff's opinion that his wife would not only overspend on clothing and other items, but that she would also buy items with the intention of returning them for the cash refund and use that money to secretly buy alcohol.   He did not offer any real evidence to support this theory and the defendant countered with some effect that the plaintiff spent a fair amount of money on his favorite things as well.

In an effort to understand the current and future ability of the two parties to support themselves and complete the education of their two sons, the court must look at the earnings of the plaintiff and the earning capacity of the defendant.

The plaintiff's “new”—and current—position is with the firm of LeClairRyan which is a national law firm with over 600 attorneys.   He is a shareholder in the professional corporation and co-leader of the firm's Construction Industry Group and Practice Team. His testimony in court described his efforts to generate income in a terrible economy.   His field—the construction field—has been especially hard hit by the current conditions.   He testified that his salary has been stagnant for the past three years.   He is scheduled to receive his year-end salary in the amount of $42,500.   That is paid on the last business day of the year.   Although the payment is budgeted, the firm may not make the payment if the firm income falls short of the anticipated amount in that annual budget.   He admitted that he has received his end of the year salary in the past, and although it is theoretically possible for the firm to pay nothing in a given year, that has never happened to his knowledge.

He does have the potential for bonus income, but he was very pessimistic about what he might receive for his efforts this year.   In the past few years, he had received an incentive bonus which had been paid as part of his recruitment into the firm but that benefit has been completed according to him.   LeClairRyan does not pay bonuses for new clients brought to the firm, but rather his efforts are part of a total shareholder pool of money that can be distributed in the form of a prosperity bonus.   The bonus for 2011 will not be determined until the last business day of the year and is actually a distribution of the firm's profit.   The bonus, if paid, is determined subjectively by a committee of the firm and is based on a number of factors.   The plaintiff believes that if he receives a bonus this year, it will be less than what was received in 2009 or 2010 because his originations are down and his billable hours are down due in large part to the economy.   As of the date of his testimony, he simply did not know whether bonuses would be paid at all, and if they were whether he would receive one or what the bonus payment might be.

The firm also has a Shareholder Allocation Policy for its members.   The most significant part of that is the self-improvement fund.   Shareholders are permitted to seek reimbursement for activities that they have engaged in during the year that fit under the policy.   The plaintiff testified that he has been reimbursed in the past for family vacations and has been approved for such reimbursement for his vacation on Nantucket this summer with his sons.   That amount is $3,750.   The reimbursement is taxable income according to the testimony.   A certain amount is budgeted for by the firm, but that is not necessarily the amount that might be paid out as it depends on what is being requested and the overall economic health of the firm.   He did not anticipate requesting or receiving any amount beyond what has already been authorized.

The plaintiff also holds preferred stock in LeClairRyan.   Currently he has four shares and can hold a maximum of ten shares.   He currently receives an eight percent distribution from that holding on a quarterly basis.   His testimony was that last year, the firm also allowed him to use his supplemental retirement payment to pay the cost of his preferred stock and that he hopes that they will allow him to do that again this year, but he has not yet made the request.

A great deal of time during the trial was spent by both sides discussing exactly what the plaintiff's actual income was.   He is now a W–2 employee rather than a K–1 partner as he had been at his past firms and that, of course, requires a different analysis of his actual compensation.   His income based on tax records for 2009 totaled $406,981.   Defendant's counsel asked the plaintiff if it was true that he had been a high income earner—around $400,000 gross per year—for many years with the exception of 2008 when the Thelen firm fell apart.   Although the plaintiff indicated that it was difficult to compare W–2 income to K–1 income dollar for dollar, he did admit that generalization was essentially true and that his income peak was probably reached in 2004 when he was still at Halloran & Sage.

Determining what earning capacity the defendant may have is not as simple.   She has not worked as an attorney since 1989 before the birth of her first son.   In the years since she left practice, she has not been employed in any other paying capacity but has performed fund-raising activities on a volunteer basis.   She offered considerable testimony about her efforts to prepare for employment and to seek employment over the last several years.   The efforts were sporadic and did not seem to have any specific plan of action that would realistically lead to employment.   None of that effort represented a serious job search effort in the court's opinion.

The first question to be answered is could she be employed at any level given her current state of declared alcoholism and her newly uncovered back problems?   The answer is perhaps, but it would really depend on how serious she was about obtaining employment and dealing with her current problems.   She could seek employment immediately despite her problems.   Her alcoholism, according to her testimony, is limited to mostly the evening hours and the court has already commented on the credibility of her current pain issues.   It would certainly be preferable for her to resolve the immediate alcohol problem rather than delay it simply for the sake of getting a job.   By her own admission, she would require a period of intense detoxification although she has not made any effort toward that end and has admitted to continued alcohol consumption during the pendency of the trial.   With a sincere effort on her part, however, she could be sober after a relatively short period of time such as 6–8 weeks,⁵ although it is unlikely that she could even begin the rehabilitation if she is taking pain medication.

The plaintiff's argument that she could obtain employment as an attorney is unrealistic.   It is not likely that she could obtain such employment in the near future.   As she testified she lacks most computer skills that associate attorneys have today and the job market for lawyers is not especially good at the moment especially in the real estate area in which she had previously worked.   The defendant is more likely to find employment in retail clothing sales or perhaps in fund-raising.   Assuming for the moment that she is successful in obtaining a state of sobriety and she can find employment in a difficult economy, it is not very likely that she could earn more than an annual gross income of $20,000 to $35,000 depending on which type of employment she is able to secure.   There is, of course, reason to assume that with a little more time, a longer period of sobriety and some significant effort to improve her skills, she could secure an associate's position within a five-year period.   At that time, based on current salaries, her earning capacity could reasonably be increased to $45,000 to $50,000 if her back issues do not incapacitate her within that time period.

The concept of basing financial orders on a party's earning capacity as opposed to one's actual earnings is well established in our statutes and case law.  Connecticut General Statute § 46b–82 directs the court to look to a series of factors in setting an alimony award including but not limited to “occupation, amount and sources of income, vocational skills, employability ․” In our case law this has come to mean that “[e]arning 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.”  (Internal citations omitted.)   Weinstein v. Weinstein, 280 Conn. 764 (2007).

Having considered carefully all of the testimony of the witnesses as well as the exhibits entered into evidence, the court makes the following factual findings:

1.  The court has jurisdiction over this matter;

2.  All statutory stays have expired;

3.  The marriage of the parties has broken down irretrievably with no reasonable prospect of reconciliation;

4.  Neither party nor their children have been the recipients of any financial assistance from the State Of Connecticut or any of its municipalities;

5.  The defendant bears the greater degree of responsibility for the marital breakdown;

6.  It would be in the best interests of the remaining minor child to be in the custody of his father for the short period of time remaining in his minority;

7.  It would also be in the minor child's best interests not to have to change schools in his senior year of high school;

8.  The plaintiff's annual gross income is $409,340 and he also has the possibility of receiving some bonus income based on the performance of his firm and his individual performance;

9.  The defendant is not employed outside of the home, but has a potential earning capacity of $20,000 to $35,000;

10.  The presumptive child support, as calculated by the court, based on the defendant's earning capacity would require her to pay $44 per week and 51% of the unreimbursed medical expenses for the minor child.6  Based on the age of the child, the overall financial aspects of the family unit and the immediate problems that would make it very difficult for the defendant to secure employment in the short term, it would be inequitable and illogical to follow the guidelines in this case;

11. The behavior of the defendant after the entry of the court orders on September 10, 2010 demonstrated multiple acts in violation of that order and the court finds the defendant to be in contempt of its orders;

12.  It would be in the best interests of both parties for the marital home to be sold as quickly as possible for as much money as possible and that would be best accomplished by the plaintiff free of any involvement on the part of the defendant;  and

13.  It is very clear that had the parties remained an intact family that they would have supported their children in their post-secondary educational efforts.

Based on its findings and in consideration of all applicable statutory criteria, the court

HEREBY ORDERS:

1. The marriage of the parties is dissolved and they are each separate and individual persons;

2. Custody of the minor child Sean Thomas (DOB March 5, 1994) is granted to the plaintiff;

3. The plaintiff shall continue to provide medical and dental coverage for the children for as long as is permitted under his insurance contract if available to him at reasonable cost;

4. There shall be no current child support order which is a deviation downward from the guideline amount;

5. The parties shall share equally all unreimbursed and/or uncovered medical and dental expenses for the minor child which is a deviation downward from the guideline amount;

6. The defendant shall have liberal and reasonable parental access to the minor child including but not limited to her participation in all school-related events;

7. The plaintiff shall pay 60% of the minor child's expenses for his final year at Choate and the defendant shall pay 40%.   Those expenses shall include but not be limited to the tuition, room and board, books, fees, laundry and other related expenses;

8. The plaintiff shall pay 60% of all post-secondary educational expenses for the two children within the provisions of Connecticut General Statutes, as amended, § 46b–56c and the defendant shall pay 40% of said expenses;

9. The plaintiff shall pay periodic alimony to the defendant in the amount of $2,939.77 per week.

a. Said alimony shall terminate upon the death of either party or the remarriage of the defendant.

b. It shall be subject to the provisions of Connecticut General Statutes, as amended, § 46b–86(b).

c. Said alimony shall be taxable income to the defendant and shall reduce the plaintiff's income for purposes of taxation;

d. Said alimony is based on the plaintiff's salary and end of year salary for a total income of $309,340.   Any funds received by the plaintiff above that amount are his to retain free and clear of any claim from the defendant;

10. Said alimony shall commence with the plaintiff's first paycheck following the date of this judgment;

11. The plaintiff shall not be permitted to move for modification of his alimony obligation unless the defendant has income in excess of $35,000 annually;

12. The plaintiff shall have exclusive use and occupancy of the marital home located at 7 Langley Park in Farmington, Connecticut.   The defendant shall vacate the marital home no later than 6:00 PM on the third day after the date of this decision;

a.  The defendant need not remove her personal property at that time and her right to the personal property shall not be impacted in any way by the fact that she vacates leaving any such property behind in the marital home;

b. The defendant may use the joint line of credit escrowed funds to pay her immediate expenses reasonable and necessary to such move including but not limited to temporary lodging in a hotel.   This shall not extend to the cost of moving any personal property out of the marital home.   The maximum amount allowed under this provision shall not exceed $2,500;

13. During his exclusive possession of the marital home, the plaintiff shall be solely liable for all expenses required for the normal and reasonable maintenance of the home including but not limited to the payment of the mortgage obligations, the taxes, insurance, utilities, association fees and maintenance required to maintain the reasonable mechanical and structural integrity of the home;

14. The defendant shall quit claim all of her right, title and interest in the marital home located at 7 Langley Park in Farmington, Connecticut to the plaintiff no later than ten (10) days from the date of this judgment.

15. The plaintiff shall immediately and with all due haste prepare the home for sale.   The house shall be listed for sale no later than January 3, 2012;

a.  As a part of preparing the home for sale the plaintiff may withdraw funds from the escrow account to pay for all repairs and cosmetic alterations reasonably necessary to maximize the sale price of the home and/or to meet the needs of a potential buyer's lender;

b. Any funds expended by either party above and beyond the escrow account for expenses detailed in the provision above shall be reimbursed from the property's gross sales proceeds;

c. The plaintiff shall engage in good faith discussions with the defendant regarding all decisions relating to the sale of the home including but not limited to the nature of the premarketing repairs, the selection of the agent, the listing price and all contract negotiations.

d. If agreement is not reached after such good faith effort, the plaintiff shall have the final decision making authority as to all matters related to the marketing and the sale of the home;

16. Upon the sale of said real property, the proceeds remaining after the payment of all normal and reasonable closing costs shall be divided equally among the parties after—

a.  The payoff of the plaintiff's Northwest Mutual Policy loan in the approximate amount of $30,000;

b. The payoff of the Bank of America loan for Choate expenses in the approximate amount of $11,000;  and

c. The escrowing of the sum of $35,000 pending resolution of the Thelen Bankruptcy Trustee claims against the plaintiff.   Any monies remaining after legal expenses and payment of claims, shall be divided equally;

d. The reimbursement of any funds advanced by either party under the provisions of § 15.b above;

17. Each party shall retain the automobile they currently possess and shall be solely liable for any and all expenses associated with the ownership and operation of said vehicle including the personal property taxes.   The plaintiff shall also retain any vehicles used by the children;

18. All bank accounts, investment accounts, stock accounts and the like shall be divided as an approximate 40/60 split in favor of the defendant as follows:

a.  The plaintiff shall retain free and clear of any claim by the defendant the LeClairRyan P.C. stock, The Wells Fargo Money Market Account, the Merrill Lynch Money Market account, the cash value of the Northwestern Mutual Policy, Farmington Field Club membership, his Connex CU account and the People's United checking account.

b. The defendant shall retain free and clear of any claim by the plaintiff the Tamarack Investments, both of her Bank of America accounts, the 100 shares of Occidental Petroleum and the Charles Schwab account.

c. The plaintiff will have control of all accounts in the names of the minor children or for the benefit of the minor children.

19. All deferred income assets shall be divided as follows:

a.  The plaintiff shall retain free and clear of any claim by the defendant the LeClairRyan 401(k) and the Merrill Lynch IRA;

b. The defendant shall retain free and clear of any claim by the plaintiff the Columbia Management IRA;

c. The plaintiff shall transfer to the defendant, by Qualified Domestic Relations Order (QDRO) if necessary, an amount to provide the defendant with 40% of the total amount of deferred income assets owned by the parties as of September 23, 2011;

d. The parties shall share equally the cost of QDRO preparation, if any.

20. Each party shall be responsible for their own medical and dental insurance but the plaintiff shall cooperate with the defendant in obtaining her rights under the federal and state laws commonly known as COBRA;

21. The plaintiff shall maintain life insurance on his life in an unencumbered face amount of $500,000 for the benefit of the defendant while he has an alimony obligation.   This provision shall be modifiable;

22. The plaintiff shall maintain life insurance on his life in an unencumbered face amount of $200,000 for the benefit of each of the children until each such child reaches the age of 23 years.

23. If the defendant can obtain life insurance at a reasonable cost, she shall obtain policies for the benefit of the children with a face value of $50,000 each and hold such policies until each such child reaches the age of 23 years;

24. The parties shall file joint tax returns for the tax year 2010 and share equally any refund or liability as well as any cost for the preparation of the returns or amended returns;

25. Each party shall be liable for their own debts as indicated on their respective financial affidavits and shall hold harmless and indemnify the other for any liability stemming from the failure to pay such debts;

26. At a time that will not interfere with the marketing of the real property, the parties shall divide the remaining personal property and household furnishings to their mutual satisfaction, but

a. the defendant shall be entitled to claim as hers any furnishings that originated from her grandparents;

b. in the event the parties cannot agree after a period of sixty (60) days, they shall submit the issue to binding arbitration using the services of an arbitrator selected by their counsel and shall share the cost of such arbitration.

27. Each party shall be liable for their own legal fees.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The studies also show that the defendant suffers from osteoporosis and is more prone to bone fractures than the general public.   This problem does not impact her current ability to work..  FN1. The studies also show that the defendant suffers from osteoporosis and is more prone to bone fractures than the general public.   This problem does not impact her current ability to work.

FN2. On the last day of trial, the defendant also claimed that her husband had been physically abusive to her during the marriage as early as the 1990s.   This never came up before the last day of trial and there is no evidence other than this testimony to support such a claim.   The court did not find the testimony on this issue to be credible..  FN2. On the last day of trial, the defendant also claimed that her husband had been physically abusive to her during the marriage as early as the 1990s.   This never came up before the last day of trial and there is no evidence other than this testimony to support such a claim.   The court did not find the testimony on this issue to be credible.

FN3. The Judicial Branch web site information indicates that the conviction in 2009 was for reckless driving and not DUI. It was a conviction based on a guilty plea by the defendant..  FN3. The Judicial Branch web site information indicates that the conviction in 2009 was for reckless driving and not DUI. It was a conviction based on a guilty plea by the defendant.

FN4. The court observed this behavior first hand.   The defendant was reprimanded numerous times by the court for her habit of just talking on regardless of objections being raised and other events.   She was completely oblivious to anything other than saying what she wished to say regardless of the consequences..  FN4. The court observed this behavior first hand.   The defendant was reprimanded numerous times by the court for her habit of just talking on regardless of objections being raised and other events.   She was completely oblivious to anything other than saying what she wished to say regardless of the consequences.

FN5. The testimony was that most programs include a detoxification period of several days and then approximately 28–30 days in intensive inpatient treatment.   At that point, the treatment would be in the nature of outpatient programs that could certainly be scheduled around working hours..  FN5. The testimony was that most programs include a detoxification period of several days and then approximately 28–30 days in intensive inpatient treatment.   At that point, the treatment would be in the nature of outpatient programs that could certainly be scheduled around working hours.

FN6. This calculation regarding the split of medical bills includes the impact of the alimony order..  FN6. This calculation regarding the split of medical bills includes the impact of the alimony order.

Adelman, Gerard I., J.