Susan Olstead v. John Olstead (2011)

MEMORANDUM OF DECISION

PROCEDURAL HISTORY

By complaint dated April 28, 2008 and returnable to the court on May 20, 2008 the plaintiff commenced this action seeking a dissolution of marriage on the grounds of irretrievable breakdown and other relief.

On June 19, 2008, the court, Barall, JTR, entered pendente lite orders that included, among others, the obligation of the defendant to pay the mortgage and real estate taxes on the marital home located at 129 Barry Road, Manchester, Connecticut (109.25).

On October 23, 2009, the parties, each of whom were represented by counsel, appeared and agreed to proceed with a dissolution of the marriage on that date and further that the case would be “bifurcated re financial orders” (126.10).   The agreement further provided the plaintiff would remain in possession of the marital home and pay all utilities.   The defendant agreed to pay the mortgage, taxes and insurance on the same.

The parties were to each obtain a “realtor's market analysis” and attempt to agree to select a realtor and asking price.   If they were unable to agree the matter may have been “presented to Judge Caruso.”   Lastly, the agreement provided all discovery was to be completed within thirty (30) days.

The parties and counsel appeared before the court, Caruso, JTR, and judgment was entered on October 23, 2009 dissolving the marriage and incorporating by reference the aforementioned written agreement of the parties (127 and 128).

On October 23, 2009, the court, in addition to making the required jurisdictional findings and granting the divorce on the basis of irretrievable breakdown, reserved “continuing jurisdiction to allocate the following financial matters:  alimony (under CGS 46b–82), distribution of assets (under CGS 46b–81), and legal fees (under CGS 46b–62).”

On August 13, 2010, the court, Caruso, JTR, entered additional orders in the matter, including, that (i) the defendant pay to the plaintiff alimony at $500 a week by way of wage execution;  (ii) the defendant's employee savings plan be frozen until order of the court;  and (iii) the plaintiff be made an irrevocable beneficiary of the first $100,000 of life insurance on the life of the defendant (135 and 136).   The defendant was represented by counsel, but the defendant was not present in court, at the time the court entered such orders.

On October 6, 2011, the parties proceeded to trial to conclude the bifurcated proceedings.   The plaintiff was represented by counsel and the defendant was self represented.   The court heard the testimony of the parties and one witness for the plaintiff and received into evidence six exhibits.   The plaintiff submitted proposed orders.   The court has reviewed and considered the earlier orders of the court, the testimony of the parties entered as of the date of the dissolution of the marriage and as of the date of the trial, the proposed orders of the plaintiff and applicable statutory and common law.

II

FINDINGS OF FACTS

The court makes the following findings of fact by a fair preponderance of the evidence.

The parties were married on November 1, 2002.   Each of the parties had children from a prior relationship, but there were no children issue of the marriage.

The parties married after living together for approximately eleven months.   They initially lived in an apartment.   The defendant worked for Gamewell Corporation and had done so since some time around 1980.   The plaintiff worked for a small, independent real estate agent.

On or about May 2003 the parties purchased the marital home at 129 Barry Road, Manchester, Connecticut.   The purchase price was approximately $186,000.   The amount of the mortgage placed thereon at the time of the purchase was approximately $112,000.   Based on the plaintiff's employment and earning history (as set forth below) the court makes the reasonable inference that the down payment for the marital home came from the defendant's funds.   At some undisclosed time prior to 2008 the mortgage was refinanced and the principal balance was increased to approximately $169,000.   The proceeds from the refinance were used to pay off marital debts.

On October 24, 2009, the day after the dissolution was granted, the plaintiff was served with foreclosure papers on the marital home.   The defendant had failed to keep the mortgage payments current since on or about April 2009.   The law day passed in September or October 2010 after having been reopened several times.   The plaintiff stayed in the home until July 2011 at which time she was evicted by the holder of the mortgage through a summary process proceeding.

During the pendency of these proceedings, the home was marketed.   Offers were received;  one offer was for the amount of $209,000.   The offer at $209,000 was withdrawn and the sale was not consummated.   The court finds, however, it was not due to a deficiency between the offered sales price and the then current indebtedness.   The payoff required to satisfy the indebtedness on the mortgage as of March 12, 2010 was for approximately $187,000.

The plaintiff claims the defendant is responsible for the loss of the equity in the home due to the foreclosure.   There was no evidence presented as to whether the home was foreclosed by sale or by strict foreclosure.   The plaintiff claims approximately $41,000 in equity was lost due to the failure of the defendant to comply with the prior court order that he timely pay the mortgage.   The court disagrees.   The court finds the equity in the home lost through foreclosure to be no more than approximately $20,000.  (Assuming a sale price of $209,000 less a 6% sales commission equals $196,460, less closing costs of approximately 4% equals $188,592 less the principal balance of the mortgage as of the refinance of $169,000 equals $19,592).   The amount of the equity lost is less than the amount of the down payment at the time of the acquisition of the home.

The breakdown of the marriage was caused, in large part, by reason of the defendant abusing alcohol.   From and after the date of the acquisition of the marital home the defendant's drinking escalated.   There was an incident on February 2, 2008 when the plaintiff came home and the defendant was intoxicated.   The defendant had a verbal altercation with the plaintiff's elder son which escalated to a shoving match and ultimately a full on brawl.   The plaintiff called the police.   The defendant was arrested and a full no contact criminal protective order was issued.   The defendant left the marital home and never returned.

Fortunately, despite his abuse of alcohol, the defendant has been able to continue to hold onto his job.   Gamewell was at some point acquired by Honeywell Corporation and the defendant has continued to progress up the ranks.   At the time of the dissolution his weekly gross pay was approximately $1,275 and his weekly net income (after taxes and voluntary deductions) was approximately $625.   He is currently earning approximately $1,300 a week, gross and $398 a week, net, after taxes, voluntary deductions and alimony are deducted from his gross pay.

The defendant was arrested for driving while intoxicated in Illinois in the fall of 2008.   In the spring of 2011 he was arrested in Meriden, Connecticut and charged with operating a motor vehicle under the influence.   That matter remains pending.   He went to a rehabilitation facility in Florida after the 2011 arrest.   He testified he has been sober since his stay in the facility.

The defendant suffers from depression and some other undisclosed, unspecified illness.   He is presently homeless and spends nights in a hotel/motel when he can afford to do so and when he cannot he has slept in his car.   He has been forced to borrow money from a friend to supply him with enough cash to permit him to get to and from work.

While married to the plaintiff, he supported her two children and helped pay for their college education.

He claims he went into the marriage with $200,000.

The defendant has maintained a 401(k) plan with Honeywell.   At some point during 2008 he borrowed approximately $9,000 from the account—as the complaint was served on May 1, 2008, the court is unable to determine if the withdrawal occurred prior to after the filing of the complaint.   He has continued to make payments on the loan.

The plaintiff while working for the realtor made approximately $270 a week, gross.   Her employer passed away during the term of the marriage and she began work as a caretaker.   Her gross weekly income as of the time of the dissolution was approximately $152 a week.

The plaintiff has little to no computer skills and a very limited earning capacity.   Since 2009 she has had difficulty obtaining employment.   After the dissolution of the marriage she learned she has osteoarthritis in her hips.   She had a hip replacement in May 2010 and she has not healed well from such surgery.   She needs another hip replacement.   She also suffers from migraines.   She takes medication to address the migraines.

Since the $500 weekly alimony order was entered the plaintiff has not been employed.

She has a civil lawsuit pending in connection with a slip and fall.   There was no evidence as to the slip and fall incident occurring during the term of the marriage.   She has not collected any proceeds in connection with such suit.   The court does not find that the expectancy of an award is an asset of the marriage to be assigned as a part of the dissolution.

The court finds that the major cause of the breakdown of the marriage rests with the defendant.

III

APPLICABLE LAW, FURTHER FINDINGS AND ORDERS

The court in making the following orders has considered the factors in General Statutes §§ 46b–81, 46b–82 and 46b–62 and other pertinent statutes, earning and earning capacity differentials, causes for the breakdown of the marriage and the consequences of the financial orders set forth below.

In its findings of the value of the property of the parties and the appropriate and equitable distribution of the same, the court has considered the guidance of the Supreme Court in Sunbury v. Sunbury, 216 Conn. 673 (1990).

At the time of entering a decree ․ dissolving a marriage ․ the superior court may assign to either the husband or wife all or any part of the estate of the other.   Similarly, 46b–82 provides in part:  “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other ․ The only temporal reference in the enabling legislation refers us to the time of the decree as controlling the entry of financial orders.   It is neither unreasonable nor illogical, therefore, to conclude that the same date is to be used in determining the value of the marital assets assigned by the trial court to the parties.   In the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property.  (Internal citations omitted, internal quotations omitted.)  Id. 676.

The court in Sunbury determined that an increase in the value of the property following dissolution does not constitute such an exceptional intervening circumstance.

While the plaintiff's increasingly debilitative state may constitute an exceptional intervening circumstance, the court notes that unlike the case in Sunbury wherein the delay in the determination of the value of the assets was due to a remand of the case to the trial court, in this matter there has not been a previous order valuing and distributing the property of the parties.   Further the court finds the exceptional intervening circumstances of the plaintiff, such as they may be, do not change other factors considered by the court, including, without limitation, the length of the marriage and the support the defendant has paid to the plaintiff.

The court finds that the defendant should not bear the full burden of the plaintiff's deterioration which has occurred since the date of the dissolution of the marriage.

A. Jurisdiction and Dissolution

Despite the passage of approximately two years since the judgment dissolving the marriage, the court retains jurisdiction to determine the severable issue of alimony, support and property dissolution.   See Ross v. Ross, 172 Conn. 269, 272–73 (1977).

Accordingly, the court finds it has jurisdiction in this matter.

B. Alimony

The purpose of General Statutes § 46b–82 is to recognize the obligation of support that spouses assume toward each other by virtue of the marriage.   Smith v. Smith, 249 Conn. 265, 275 (1999) (“the purpose of both periodic and lump sum alimony is to provide continuing support”).”  Mickey v. Mickey, 292 Conn. 597, 615–6, (2009).   The court has discretion as to whether to issue an order of periodic alimony, lump sum alimony or both.

Based upon the statutory factors, including the age, health, education, earnings, vocational skills and work experience of the defendant and of the plaintiff, a time-limited award of alimony is appropriate.   See, Ippolito v. Ippolito, 28 Conn.App. 745, cert. denied, 224 Conn. 905 (1992);  and that in making an award, the court has taken into consideration the division of the marital property pursuant to General Statutes § 46b–81c.   The court has further taken into consideration the fact that the defendant has been paying $509 a week in alimony for one year and two months pursuant to the order of the court dated August 13, 2010.

The defendant shall pay to the plaintiff $400 per week as and for periodic alimony, from and after the date hereof until October 31, 2012 and then $300 a week until October 31, 2014, or, if earlier, until the death of either party, the remarriage of the plaintiff, or cohabitation by the plaintiff whichever may sooner occur.   The alimony shall be non-modifiable by either party as to term.

The alimony is to be paid by immediate wage withholding.   The alimony shall be includable as income to the plaintiff and deductible by the defendant on his income taxes.

The court finds an arrearage in the alimony payable by the defendant to the plaintiff pursuant to the August 13, 2010 order in the amount of $2,000.   The arrearage shall be payable by the defendant in weekly installments in the amount of $75 until paid in full.

No alimony is awarded to the defendant.

C. Medical insurance

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

D. Automobiles

Each party shall be entitled to keep the automobile which they are currently driving, whether owned or leased, free and clear of any claims by the other, and each party shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register same.   Each party shall indemnify and hold the other harmless from any claim by any creditor holding any debt secured by the retained automobile.

E. Bank accounts

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

F. Personal property

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

G. Pension

The defendant shall transfer to the plaintiff by way of a Qualified Domestic Relations Order (QDRO) 50% of the marital portion of any pension plan he may have with his employer.   The marital portion shall mean the period from the date of marriage—that is November 1, 2001 through the date of the dissolution of October 23, 2009.   Plaintiff shall arrange for the preparation of the QDRO and the plaintiff shall bear all expense in connection therewith.   The court shall retain jurisdiction of the implementation of the QDRO.

H. Honeywell Employee Savings Plan—401(k)

The court finds the value of the plan as of the date of the dissolution was $19,244 and the outstanding loan balance was $6,899.   If the loan was repaid as of the date of the dissolution, the value would have been $26,143.   The court awards to the plaintiff a disproportionate share of the value of the 401(k) as of the date of the dissolution and awards to the plaintiff the sum of $17,000 or approximately 65% of the 401(k) as of the date of the dissolution.   The 401(k) has appreciated from the repayment of the loan and from market earnings since the dissolution.   The plaintiff should share in the market earnings/losses on the $17,000 from the date of dissolution to today, but should not share in the increase in the value from the repayment of the loan, nor from the increase in value due to additional contributions made by the defendant and his employer to the 401(k) since the date of the dissolution.   Accordingly, the defendant is ordered to instruct his employer to calculate the net earnings/losses on the defendant's 401(k) between October 23, 2009 and the date of this memorandum.   The plaintiff shall be entitled to 65% of the net of the earnings/losses so determined.   The defendant shall then roll over or transfer to the plaintiff the sum of $17,000 plus the 65% of the net earnings/losses from his 401(k) account as so determined to an account of the plaintiff within ninety days of the date of this memorandum.   To the extent necessary to consummate the rollover or transfer the plaintiff shall open an account to receive the funds.

The court shall retain jurisdiction over the implementation of the rollover/transfer of the 401(k).

I. Life Insurance

The defendant shall maintain, until his obligation to pay alimony is satisfied, life insurance in an amount of not less than $50,000 naming the plaintiff as an irrevocable beneficiary.   The defendant may from time to time reduce the amount of insurance so maintained to equal to the remaining balance of the alimony payable to the plaintiff.   The defendant shall provide proof of maintenance of said policy to the plaintiff within sixty days of the date hereof.   The defendant shall also notify the insurance company to send to the plaintiff duplicate notices of any potential lapse or cancellation for nonpayment of premiums.

J. Other assets and liabilities

Subject to the terms of this order, each of the parties shall keep the assets listed on his/her respective financial affidavit and be responsible for the debts listed on the same.   Each party shall indemnify and hold the other harmless with respect to any debt, or portion thereof, ordered to be paid by such party.

K. General indemnification

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

L. Attorneys fees

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

M. Effectuation of orders

Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within ten days of presentment.

Unless otherwise specifically set forth herein, these orders are effective immediately.

SO ORDERED.

BY THE COURT,

Olear, J.

Olear, Leslie I., J.