Terry Aliano v. Michael Aliano (2011)

MEMORANDUM OF DECISION REGARDING DISSOLUTION, ALIMONY, CHILD SUPPORT, GAL FEES AND PROPERTY DISTRIBUTION

The court bifurcated this trial holding hearings regarding the custody and access schedule of the minor child on August 25, September 21 and September 22, 2011.   The financial issues of alimony, property distribution, Guardian ad litem (GAL) fees and child support were addressed on October 6, October 7 and October 13, 2011.

A review of the record reveals that the parties were married on February 24, 2007 and have one child, issue of their marriage, Giovanni Aliano born March 2, 2008.   The court has fully considered the criteria of Connecticut General Statutes (CGS) §§ 46b–56, 46b–56c, 46b–62, 46b–81, 46b–82, 46b–84 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments 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 fair preponderance of the evidence:

1. The plaintiff and the defendant whose maiden name was McDonald were married on February 24, 2007 at Norwich, Connecticut.

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 has been one child born to the wife since the date of the marriage, namely Giovanni Aliano born March 2, 2008.   No other children have been born to the wife since the date of the marriage.

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. 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 child so the court will enter a post-majority educational support pursuant to CGS § 46b–56c.

8. The parties previously resided in the spacious marital residence together with the wife's 22–year–old son and 11–year–old daughter from two previous relationships and the three-year-old son, issue of the marriage.

9. The husband had owned this home for 13 years, well before the parties met and married.   During the brief marriage, the husband earned all of the money and paid all of the bills.

10. The court had entered previous orders giving the wife temporary pendente lite exclusive possession of the marital residence.   Thereafter, the court entered pendente lite orders giving the husband exclusive possession of the marital residence from approximately June 2011 until the present time.

11. On or about June 2011, the wife, together with her 11–year–old child, relocated into a condominium in Norwich which she shares with an acquaintance, Shelly Chenonceau.

12 The plaintiff is now self-represented after having three different lawyers representing her.

13. The wife is 45 years old and in excellent health.   At the time of the marriage, she was successfully employed in the fields of advertising, marketing and sales and was earning approximately $80,000 per year and sometimes receiving child support from the father of her daughter in the amount of $100 per week.   Soon after the marriage, she became pregnant and her husband encouraged her to leave work assuring her that he would provide for all of her needs.   She has been a stay-at-home mother ever since.

14. The wife is pursuing employment both within and outside of the state of Connecticut.   Given the custody and access schedule which the court issues, the court finds that the wife has a present earning capacity of $30,000 per year.

15. The wife owns a residence in Brooklyn, Connecticut valued at $145,000 subject to $130,000 mortgage, a 37–foot power boat in need of restoration valued at $2,500, jewelry and firearms valued at $8,500 and a bank account of $120.

16. The wife has debt in the amount of $106,000 including credit cards, legal fees, a student loan and personal loans to family and friends.

17. The husband is 37 years old.   He is the president and CEO of a number of family businesses founded by his father, the late Ronald Aliano.   Although the estate of Ronald Aliano is involved in protracted probate challenges by a woman who claims to be Ronald Aliano's third child, the husband stands to inherit a significant portion of the estimated $10 million estate.

18. The husband's assets include his home valued at $260,000 subject to a $224,000 mortgage, an office building in Norwich valued at $450,000 subject to a $418,000 mortgage, his bank accounts of $560, a retirement account valued at $72,000, his interest in American Professional Education Services valued at $24,000, Chelsea Fleet Services with a negative $207,000 value and a 49% interest in Connecticut Ambulance Billing Services, Inc. All of these assets are premarital.   He has an anticipated inheritance from his father of an unknown amount.

19. The husband's debt includes $202,000 to Connecticut Ambulance Billing Services and approximately $85,000 in miscellaneous debt.

20. As president and CEO of these family businesses, the husband claims to earn $106,000 which includes a significant car allowance.   The court previously found that the husband's earning capacity is closer to $150,000 based on in-kind services and benefits which the businesses provide to him including but not limited to free gasoline, use of company vehicles, and company employees performing personal services.   In addition, the husband has been the recipient of approximately $200,000 in “officer loans” due to Connecticut Ambulance Billing Service, Inc., which bear no interest or repayment plan.

21. The court finds that the husband's earning capacity is $150,000 per year.   He has senior employees who earn more than he and if he asked the chairman of the board of his employer, Andre Messier, for a raise, it would not likely be denied.

Mr. Messier is the principal accountant for the “family businesses” and presumably earns significant income from that position.

22. During the course of the marriage, the wife maintained the home and cared primarily for their child.   She undertook the shopping, cleaning, and meal preparation.   The husband was solely responsible for earning the family income and was solely responsible for the acquisition, preservation and appreciation of the assets of the parties.

23. During the marriage, the equity in the husband's home diminished because they took out home equity loans for the wedding, honeymoon and for the wife's legal fees unrelated to this litigation.   The husband had no debt at the time of the marriage and now has more than $285,000 of unsecured debt in addition to his home mortgages.

24. Apparently, the fighting started within two months of the marriage.   Over the next two years the parties vacillated between wanting a divorce and attempting to reconcile.   On September 15, 2009, the wife initiated a dissolution action which was immediately withdrawn.   This instant dissolution action was instituted by the wife on March 1, 2010 and the parties have been aggressively litigating since that time.   Thus, the parties have been married for 4 1/2 years but contemplating divorce and litigating for more than half of that time with the husband paying all of the legal fees, well in excess of $150,000.   Both parties blame the other for the cause of the dissolution.   The wife spent lavishly and above their means.   On her October 18, 2010 financial affidavit, she claimed to spend $606 per month on hair and beauty supplies, $1,500 per month on groceries and another $920 per month on dining and movies.   The husband had spent $60,000 for the wife's legal fees for gaining custody of her daughter and terminating the parental rights of her ex-husband.   The wife often exceeded the credit limit on their credit cards.   The court finds the cause of the dissolution to be mostly hers.

25. In the wife's revised proposed orders, she is requesting a package in excess of $1.7 million.   Evidencing her unreasonable demands, she requested that the 37–foot power boat be awarded to her.   She acknowledged that the operating costs for such a boat are between $12,000 and $15,000 per year and was unable or unwilling to appreciate that a single mother with no job would be hard-pressed to fund such an extravagant hobby.   In a similar vein, she is requesting alimony of $500,000, payment of her debts in the amount of $100,000, four years of college and three years of law school for herself (at the institutions of her choice) which could cost approximately $400,000, payment of the child's college education and private school tuitions until he graduates from high school which could cost $500,000, and an order that the defendant husband pay the income taxes associated with all of these orders.

26. The court finds the plaintiff's revised proposed orders to be unreasonable and not supported by either the law or the facts of this case.

27. The GAL spent in excess of 80 hours on this case.   She exhausted her initial $10,500 retainer and has billed an additional $10,000 through and including the three-day custody hearing.

LEGAL DISCUSSION

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 distribution of assets in a dissolution action is governed by § 46b–81 which provides in pertinent part that a trial court may ‘assign to either the husband or the wife all or any part of the estate of the other ․ 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 ․ shall consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ 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.’  ․ 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. 398–00.”  (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 § 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” and that “a determination of each spouse's contribution within the meaning of ․ § 46b–81 includes nonmonetary as well as monetary contributions.”  Id., 153.

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 therefore 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.”  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007);  Eliah v. Eliah, 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 Marmo v. Marmo, 131 Conn.App. 43 (2011), held:

The traditional purpose of alimony is to meet one's continuing duty to support ․ [C]ourts have begun to limit the duration of alimony awards in order to encourage the receiving spouse to become self-sufficient.”  Roach v. Roach, 20 Conn.App. 500, 506, 568 A.2d 1037 (1990).  “[U]nderlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency ․ A time limited alimony award generally is for rehabilitative purposes but other reasons may also support this type of alimony award.”  (Citation omitted;  internal quotation marks omitted.)  Ippolito v. Ippolito, 28 Conn.App. 745, 752, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).   “Another valid purpose for time limited alimony is to provide interim support until a future event occurs that makes such support less necessary or unnecessary ․ In Wolfburg, [supra, 27 Conn.App. 402] our review of the record revealed that the time limited alimony award was found to provide interim support until the minor child reached the age of majority ․ This constituted a valid purpose for an award of time limited alimony.   Other future events that may require interim support through an award of time limited alimony include occurrences such as a bond maturation, trust disbursement, or mortgage maturation.  Ippolito v. Ippolito, supra, 752–53.”

Id. 47–48.

ORDERS

1. The custody and access orders contained in the memorandum of decision regarding custody and access are incorporated by reference and made orders of this court.

2. The husband shall pay to the GAL an additional $10,000 within one year representing the balance due to the GAL for her excellent service to this family.

3. The husband shall pay alimony to the wife in the amount of $500 per week for one year, $400 per week for one year and $300 per week for one year.   It is not modifiable as to term or as to amount.

4. The husband shall maintain medical and dental coverage for the minor child.

5. The presumptive child support order from the wife to the husband is $5 per week.   Due to the disparity in income, the court will deviate from that presumptive guideline amount such that the plaintiff will not pay child support to the defendant.   The defendant shall be responsible for all day care expenses related to the minor child as long as the plaintiff is not paying child support.

6. The husband shall be entitled to take the dependency tax exemption for the minor child each year.

7. The husband shall transfer to the wife the Ford Expedition, which she is presently driving, free and clear of any loans, taxes or registration fees.   He shall cooperate with the wife in the transfer and registration of said vehicle and he shall be solely responsible for all loans, insurance, taxes and registration fees of said vehicle until its transfer.   Thereafter, the wife will be responsible for any maintenance, fees, taxes and insurance associated with said vehicle.

8. The wife shall be solely responsible for all debts which appear on her financial affidavit and shall indemnify and hold the husband harmless for any such debts.   She shall be entitled to retain her Brooklyn, Connecticut real estate, her jewelry, her Ford Expedition, her two guns, the 37–foot powerboat, the personal property in her possession, the personal property previously allocated to her by the court and her bank accounts.

9. The husband shall be solely responsible for the debts which appear on his financial affidavit and shall indemnify and hold the wife harmless for any such debts.   He shall be entitled to retain his real estate, his bank accounts, his retirement accounts, his inheritance and any and all interest he has in the “family businesses.”

10. The husband shall be responsible to provide for the child to attend up to a total of four academic years at an institution of higher education pursuant to CGS § 46b–56c.

11. As additional alimony, the husband shall pay to the wife the sum of $3,000 per year for three years each January 1 for her health insurance needs unless it is provided by her employer.

12. The husband shall make a payment to the wife in the amount of $100,000 within 30 days of his receiving his inheritance so long as such receipt is in excess of $250,000.

13. The plaintiff's motion for contempt is denied, the court finding that the art therapy bills for her daughter, not issue of this marriage, are not the defendant's responsibility nor is it a “medical expense.”

14. The wife's previous name, McDonald, is ordered restored.

15. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.