Suzanne M. Dembroski v. Luc A. Despins (2012)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR ALIMONY, PENDENTE LITE DATED JUNE 6, 2010 (# 101.00)

This is a decision on the first of three motions heard together seeking customary pendente lite relief filed early on in this contested dissolution of marriage action.

The plaintiff's complaint dated June 6, 2010 alleging that she is a resident of Larchmont, New York and the defendant is a resident of Greenwich, Connecticut, contains the following Connecticut jurisdictional allegations:  “The Defendant is a resident of the State of Connecticut and will have resided in Connecticut for at least twelve months next preceding the entry of a decree of dissolution of marriage between the parties hereto.”  “Although not a current resident of the State of Connecticut, the Plaintiff will have resided in Connecticut for at least twelve months next preceding the entry of a decree of dissolution of marriage between the parties hereto.”   The plaintiff's Claims for Relief requested a decree of dissolution of marriage, custody, alimony, child support, educational support order, counsel fees, equitable distribution of property and any other further relief as this court may deem equitable.   Three pendente lite motions were served by a marshal on the defendant along with the original writ, summons and complaint.   The first motion requests Alimony, Pendente Lite (# 101.00) and is the subject of this Memorandum of Decision.   The second motion requests Child Support Pendente Lite (# 102.00) and the third motion requests Counsel Fees (# 103.00).   Since the plaintiff resides in Larchmont, New York with the minor children, no pendente lite motions for custody and/or visitation have been filed.   The defendant was served with the writ, summons and complaint and the three pendente lite motions.   He hired counsel who immediately filed an Answer and a Cross–Complaint dated June 14, 2010 (# 104.00).   The Cross–Complaint sought a dissolution of marriage and contains the following Connecticut jurisdictional allegations:  “The causes for the breakdown of the marriage arose subsequent to the Defendant's establishment of residence in the State of Connecticut.”   His Claims for Relief requested a dissolution of marriage and equitable distribution of the assets of the parties.   Throughout the entire pendente lite hearings neither party raised any issue concerning the jurisdiction of this court to decide these three financial motions.

The court finds the following facts and legal conclusions.

Plaintiff, whose birth name was Suzanne M. Dembroski, and the defendant, Luc A. Despins, were married on June 15, 1990 in Toronto, Ontario, Canada.   The family home is the plaintiff's current residence at 6A Pryer Lane, Larchmont, New York. The parties have three children, all of whom were minor as of June 2010;  Madeline Despins born February 16, 1993 and then a senior at Mamaroneck High School, a public secondary school, Isabelle Despins born November 10, 1994 and then a junior at the School of the Holy Child in Rye, New York, a private parochial school, and Sophie Despins born January 8, 1998 and then in eighth grade in a Mamaroneck public school.

6A Pryer Lane, Larchmont, New York was purchased by the family in 2005.   It fronts on the waters of Long Island Sound in Larchmont, New York. The two-thirds acre property is improved with a newly built house with six bedrooms, eight baths, a three-car garage and a third-floor gym.   The exterior contains a pool, large flagstone steps leading to the water and high quality landscaping.   The house was built by the parties.   The three children continue to reside in the Larchmont house.   The defendant moved from the Larchmont house in April 2009 to Greenwich, Connecticut.   He has continually resided in Greenwich, Connecticut at two different addresses since April 2009.

The plaintiff is 49 years of age.   She has a college degree.   Her health is good.   She is unemployed and is engaged full time in keeping the Larchmont house and caring for the three children issue of the marriage.

The defendant is 50 years of age.   He is in good health.   He received two law degrees.   He also holds a Masters of Law from Harvard University.   He is a partner in the international law firm of Paul, Hastings, Janofsky & Walker, LLP. His offices are located in New York City. He is chairman of the law firm's Global Restructuring Practice.   His employment contract was offered in evidence;  “Letter Agreement” Ex. 1. It established that he is receiving a guarantee of $5,500,000 per year.   His earlier financial affidavits indicated that his gross monthly income from employment as a partner at Paul, Hastings, Janofsky & Walker, LLP was $458,333 per month, which is $5,500,000 per year.   (August 23, 2010, # 114.00.) The latest financial affidavit dated July 21, 2011 (# 259.00) indicates that his gross monthly income is $375,000, which is $4,500,000 per year.   This $375,000 gross monthly income is modified by an asterisk that states:  “Actual amount received on any given month during a calendar year varies materially from this amount per the term of the 2008 letter agreement between Defendant and Paul, Hastings, Janofsky & Walker, LLP (“the Letter Agreement”).   Moreover, pursuant to the terms of the Letter Agreement commencing February 1, 2012, there will no longer be a dollar amount guarantee, but rather there will be a 140 units guarantee, which is based upon the most recent fiscal year results, equals approximately $208,033 per month of gross income.

No documents were offered in support of his claim that his annual current earnings are less than $5,500,000.   The court finds that the defendant's current gross income as a partner with Paul, Hastings, Janofsky & Walker, LLP is $5,500,000 per year;  $458,333 per month.

From that monthly income of $458,333 there are deductions for Medical Insurance:  $1,525, Dental and Vision $120, LTD $207, Metlaw $17, AD & D $4, and Supplemental Life Insurance $75.   These deductions remain the same whether or not the gross income is $5,500,000 or $4,500,000.   At $458,333 gross per month income his monthly federal, city and state income taxes are $197,083 (# 114.00, # 144.00).   The defendant's net monthly income from employment is $259,302.   All of the defendant's financial affidavits indicate additional monthly income from “interest or dividends” of $4,030 with 40% deducted for taxes at $1,612 resulting in net income per month from interest of $2,418.   The defendant has no dividend income.   The court finds that the defendant's net monthly income from all sources is $261,720.

The plaintiff's financial affidavits all indicate no employment income and some interest and dividends.   Her first financial affidavit dated August 12, 2010 shows $125 month gross income from that source (# 113.00).   Her current financial affidavit dated July 23, 2011 shows a slight increase to $183 gross per month and $146 per month net income from interest and dividends. (# 262.00.) The court finds that the plaintiff's net monthly income is $146 per month.

The format of the plaintiff's financial affidavits remains essentially the same, with each item of expense consecutively numbered.   The numbers slightly changed so that the August 12, 2010 contains 65 numbered categories and her current July 23, 2011 affidavit contains 67 numbered categories.   Included within the plaintiff's expenses are all of the costs for the Larchmont house including the mortgage, real property taxes, insurance, etc., costs for the Quebec condominium, food, medical, clothing, personal care, automobile expenses, child care, educational expenses, fees, charities, dues, entertainment, gifts and miscellaneous expenses.

As the pendente lite hearing continued each party filed up to date financial affidavits.   The plaintiff used professional bookkeepers to provide the expense side of her affidavits.   It was a work in progress so the expense numbers changed.   For example, her August 12, 2010 affidavit claimed monthly expenses of $75,250, whereas her July 23, 2011 affidavit claimed monthly expenses of $65,925 (# 113.00, # 262.00).   In later affidavits the plaintiff had two columns of expenses.   The July 23, 2011 actual expenses were $65,925 and the anticipated expenses were $69,450 a month.   It was these plaintiff's expenses that consumed virtually the entire pendente lite hearing.

The defendant's July 21, 2011 affidavit lists his monthly expenses at $33,513.   The plaintiff's financial affidavit lists expenses at $65,925/$69,450 monthly.   Some of these expenses are duplicated by each party, such as the Quebec condominium and the Larchmont Shore Club. These monthly expenses combined for both parties is less than half of the defendant's $261,720 net monthly income as found by this court.   The evidence before the court indicated that there were four major issues in this pendente lite hearing.  (1) How to determine child support when the combined net weekly income exceeds the child support guidelines?  (2) How to allocate household and other such expenses between an adult and the three children?  (3) Should the defendant continue to pay the household bills directly as he has been doing pendente lite without a court order or should he be required to pay a cash amount of alimony and child support and the plaintiff then pays these expenses directly?, and (4) Can charitable contributions be ordered pendente lite?   The court will discuss each of these four issues.

(1) How to determine child support when the combined net weekly income exceeds the child support guidelines?

Two Connecticut Supreme Court decisions discussed this subject in 2010.   Maturo v. Maturo, 296 Conn. 80 (2010) and Misthopoulos v. Misthopoulos, 297 Conn. 358 (2010).   The child support guidelines schedule sets a maximum for “Combined Net Weekly Income” of $4,000.   Based upon the court findings, the parties' Combined Net Weekly Income exceeds $4,000.   At $4,000 per week each parent's share of the Basic Child Support Obligation is $686 per week for three minor children and $636 per week for two minor children.   The respective percentages used to determine the Basic Child Support Obligation is 15.89% for two minor children and 17.16% for three minor children.   These two numbers take into consideration the fact that on February 16, 2011 while this court was conducting these pendente lite hearings the oldest child, Madeline, attained the age of 18.   Child Support Guidelines Worksheets were submitted reflecting that information:  One for three minor children and the second for two minor children.

Since Madeline is now over 18 years of age, the court must consider the child support for two minor children.   The guidelines sets the presumptive child support amount at $636 per week for the $4,000 Combined Net Weekly Income for two minor children and the percentage for presumptive child support is 15.89% for two minor children.   Since the two 2010 decisions of Maturo and Misthopoulos, no Appellate Court rendered a decision on a high income/high asset child support issue.   Two trial court decisions have considered combined net weekly income in excess of $4,000.   In Fox v. Fox, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST FA 03–0197091 S (March 29, 2011, Tierney, J.T.R) an extensive analysis of the actual needs for the minor children was conducted.   In Dowling v. Szymczak, Superior Court, judicial district of New London at Norwich, Docket No. FA 09–4110328 S (May 31, 2011, Boland, J.), the trial court reviewed Maturo, Misthopoulos, and Fox v. Fox. Dowling was an appeal from a decision of a Family Support Magistrate in a high income case.   The trial court concluded:  “In light of the foregoing, and with due respect for the erudition displayed in the Fox decision, I disagree with its conclusion that the presumptive support where total net income exceeds $4,000 is the dollar amount shown on the top step.   Instead, it is my opinion that the presumptive amount of guideline support is a number on a spectrum ranging from a presumed minimum of $473 to a presumed maximum of $1,674 (11.83% times $14,154), and that the trial court possesses the discretion to locate that exact number by a case-by-case examination of the facts listed in Conn. Gen.Stat. § 46b–84(d).  The FSM's choice of this process was legally correct.”   In Dowling the net weekly income was $14,154.   The presumptive percentage according to the child support guidelines for the one minor child in Dowling was 11.83% and thus the $473 per week.

Using the child support guidelines worksheet for the two minor children, the court finds that the Combined Net Weekly Income for the parties is $60,431 ($261,720 + $146 = $261,866 per month).   Therefore for two minor children the guidelines establish the following spectrum:  At 15.89% times the $60,431 the result is $9,602.49 as the presumptive child support amount and using the chart only, $636 is the presumptive child support amount using the dollar amount for the maximum of $4,000 net weekly income.   The presumptive child support as a minimum would be $636 per week and the presumptive child support as a maximum would be $9,602 per week.   The court will render a child support decision consistent with the above.

(2) How to allocate household and other such expenses between an adult, the plaintiff, and two minor children and a third adult child?

The plaintiff's July 23, 2011 financial affidavit indicates that the total monthly housing expenses “Actual (2010)” including mortgage, real property taxes, homeowner's insurance, water, electric gas, wireless telephone, internet service, home telephone, air conditioning, heating, household maintenance, repair, yard maintenance, security system, window cleaning and pool is $21,771.   The minor children currently reside in the house full-time.   Madeline holds out the Larchmont house as her domicile.   She lives in the house when she is not otherwise away at college in Vermont.   This is a six-bedroom house.   Neither statutes nor the child support guidelines furnish any formula for the court to allocate a portion of those housing expenses to the minor children.   This court wrestled with that problem in Fox v. Fox and performed its own allocation independently of the adult occupant's claim.   An allocation problem also exists concerning the $3,042 for food, $2,508 automobile, $3,362 medical, use of the club, travel and pet expenses.   Most medical expenses can be allocated by considering each bill.   To some extent the charges of the Larchmont Shore Club could be allocated by considering each charge.   The exact allocation of expenses between adults and minor children is next to impossible for food, shelter, restaurant expenses and the allocation of automobile costs.   The plaintiff's financial affidavit breaks down certain costs incurred directly for the children such as hairdresser, child care and $7,614 for certain educational expenses.   These expenses can be allocated.   Neither party offered any guidance to this court in the form of a mathematical formula as to how general household expenses and such can be allocated between the adult occupants and users and the minor children.   For example, the following methods could be used to allocate the housing costs:  divide the total by four (3 children and 1 adult);  divide by three (2 children and 1 adult) with the third child in college and thus not factored in;  obtain a number by dividing the number of bedrooms and then use that number for each of the two minor children;  use that percentage obtained multiplied by three children;  assume the adult will continue to occupy the house after all the children have moved out and allocate nothing to the children, divide the number of rooms used by the minor children by the total number of rooms and use that percentage to allocate minor children's costs;  divide the house by square footage used by the minor children by the total square footage and use that percentage to allocate minor children's costs.   This court performed some of these calculations in Fox v. Fox and the shelter costs attributed to the minor children varied wildly.   The court will conduct its allocation on a case by case basis, which will be reflected in the dollar award set forth in this memorandum of decision.

(3) Should the defendant continue to pay the household bills directly as he has been doing pendente lite without a court order or should he be required to pay a cash amount of alimony or child support and the plaintiff then pays these expenses directly?

The defendant has paid a majority of the bills directly for the last few years.   Previously, the plaintiff paid the family's bills.   The defendant's Proposed Orders Pendente Lite dated August 19, 2011 (# 269.00) itemized in detail those household and other family expenses that he proposed to pay directly to the providers.   He requested that these direct payments not be taxable to the plaintiff.   He states that this pendente lite alimony motion is unnecessary since “I have paid every bill that has been submitted to me.”   The proposed direct payments include the mortgage, real property and school taxes, homeowners and flood insurance, reasonable household repairs not exceeding a certain limit, invoiced expenses for utilities, home security system, window cleaning, etc., clubs dues and assessments for the Larchmont Shore Club, automobile insurance and reasonable necessary repairs not to exceed a certain amount, and the Quebec condominium including real property and school taxes, utilities, telephone, cable, internet, cleaning lady, condominium fees, association dues and security and monitoring costs.   The defendant proposed to pay directly certain reasonable expenses such as unreimbursed and uninsured medical costs, expense associated with the education of the minor child, Sophie, costs associated with driver's education, college prep and other such expenses for the minor children and costs associated with the minor children's attendance at summer camp.   He requests an order that the plaintiff forward invoices to the defendant within a certain period of time and he suggests a structure for the submission of invoices, payments and proof of payments in his Proposed Orders.   In addition the defendant offers to pay $15,000 per month taxable to the plaintiff as periodic alimony.

The plaintiff requests an unallocated alimony and child support pendente lite order in the amount $91,673 monthly.   This includes the state and federal income taxes due on the plaintiff's periodic alimony.   The plaintiff proposed that this sum be taxable to the plaintiff and deductible to the defendant as periodic alimony.   Further education expenses for the children of $3,942 monthly were requested.   The plaintiff proposes that the parties' Stipulation dated November 30, 2010 be included in the pendente lite order.   The plaintiff notes that the defendant works 60–hour weeks and is often on business travel, leaving him inadequate time to properly deal with family bills directly.

In outlining these two general proposals, it is not the intent of this court to itemize in detail the various Claims for Relief and Proposals but to merely outline the great difference in the view of the parties concerning the methodology for making these payments.   The defendant claims that these payments will be made because the accounts are in his name and he has been paying these pendente lite since he moved out of the house in April 2009.   He claims that the plaintiff has failed to make certain payments causing some late fees and concerns for maintaining good credit.   He claims that her expenses are inflated and paying that amount directly would give her a windfall.   As examples he notes $100 an hour for decorating three Christmas trees and listing the mortgage first at $8,167 per month, later reduced to $5,031 per month, when in fact the actual mortgage payment was then $1,273 per month.   Ex. 6. He points to a document prepared in 2008 by both parties when the family's expenses were listed at $500,000 a year.   Ex. 35.   The defendant has prepared an extensive nine-page exhibit summarizing the expenses from June 8, 2010 through December 13, 2010 that he states contains the factual basis for his direct payment claims.   Ex. 74.   Ex. 74 was based on his review of every check, bank statement and credit card bill for the period in question.

The plaintiff submitted her own four-page summary of her actual 2010 expenses.   Ex. 59.   The plaintiff argues that this direct payment request is nothing more than an attempt by the defendant to control her life during the dissolution process and her financial life going forward.   She states that both parties in their pleadings agree that the marriage has broken down irretrievably. (# 100.00, # 104.00.) She argues that she should be allocated an amount of money which she can spend of her own free will.   She does not want to be tied down to an accounting procedure with the defendant for each of these expenses, which will require the exchange of invoices back and forth and consulting with each other concerning what is “reasonable” under the court order.   She argues that her direct payment of the bills will more efficiently manage the bill payments and reduce her stress of whether the bills were paid.   The plaintiff notes that the defendant claims monthly expenses for himself of $30,000 yet he protests at the plaintiff's claim of just over double these monthly expenses for a parent and three children.

Each party offered evidence as to each of the numbered expenses from their point of view as to whether they should be paid directly or whether they should be paid in a cash amount.

“The purpose of alimony pendente lite is to provide a party with support during the pendency of the dissolution action ․” Clark v. Clark, 127 Conn.App. 148, 158 (2011):  The payee's financial needs can be determined by examining the amount previously spent by the payee.  Friezo v. Friezo, 84 Conn.App. 727, 732 (2004).  “In general, the dignity and independence of the recipient of alimony is enhanced by the direct receipt of the funds, and diminished when the obliger undertakes to make payments on the recipient's behalf to third parties.   Hence, the plaintiff was entitled under the judgment of the court to receive $500 per week, to spend as she might choose.”   Standish v. Standish, Superior Court, judicial district of Hartford at Hartford, Docket Number FA 92–0507979 S (November 23, 1998, Gruendel, J.).  “The testimony of the parties clearly evidenced that their lifestyle was extravagant.   The husband has paid all of the household bills and expenses and gave the plaintiff a monthly allowance.   Therefore, what a husband can afford to pay for alimony pendente lite is a material consideration in the determination of what is a proper order.  Casanova v. Casanova, 166 Conn. 304–05 (1974).   Our courts have frequently considered the standard of living enjoyed by spouses in determining alimony.  Blake v. Blake, 207 Conn. 217, 232 (1988).”   Hershey v. Hershey, Superior Court, judicial district of Stamford/Norwalik at Stamford, Docket Number FST FA 03–0197896 S (October 15, 2004, Grogins, J.T.R.).

The court's order has considered each of these claims made over the nineteen days of testimony.

(4) Can charitable contributions be ordered pendente lite?

The plaintiff claims that based upon the substantial assets and income that the parties enjoy and their prior gifts, that charitable contributions are a normal component of their life.   From the $91,673 that the plaintiff is proposing for monthly periodic alimony the sum of $1,093 per month is attributable to charitable contributions.   It became a major issue in this pendente lite hearing when evidence was disclosed that a $10,000 contribution was made to a school field by the plaintiff without the consent of the defendant.   Her financial affidavit of July 23, 2011 indicates $750 per month for charitable contributions.   The plaintiff has increased that to $1,093 since there will be an alimony tax burden with respect to the same thus netting out the $750 for charitable donations.   The plaintiff filed a separate motion dated December 8, 2010 entitled Plaintiff's Motion for order Re:  Charitable Donations, Pendente Lite. (# 170.00.) The plaintiff furnished a memorandum of law on the subject citing only one case in Connecticut that discussed charitable contributions as a component of a party's “needs.” (# 171.00) The court is familiar with that case.   The court will award pendente lite alimony sufficient for the plaintiff to make the charitable donations listed in her financial affidavit.

ORDER

After considering all the statutory factors set forth in Gen.Stat. § 46b–83 as to alimony pendente lite, the pendente lite factors enumerated in Gen.Stat. § 46b–82, together with applicable case law as well as the evidence, testimony, claims of law and claims of fact presented here the court hereby enters the following orders;

(1) The defendant shall pay on a timely basis directly to the providers the following expenses.

(a) Payments on the existing Citi Bank mortgage # ․ 117–0 for principle and interest on the Larchmont, New York house.

(b) Real property, village, county and school taxes for the Larchmont, New York house.

(c) Homeowners insurance and flood insurance for the Larchmont, New York house.

(2) The defendant shall pay directly to the providers the following Quebec condominium expenses:  (a) real property and school taxes (b) utilities, (c) telephone, (d) cable/internet, (e) cleaning lady, (f) condominium fees and association dues, and (g) security and monitoring costs.

(3) The defendant shall pay directly to the provider the automobile insurance costs for the 2006 Mercedes Suburban, the 2006 GMC Yukon Denali, and the 2009 Honda CRV automobiles, continuing the same coverage as in effect on June 7, 2010.

(4) The defendant shall pay directly the dues, assessments and capital assessments for the Larchmont Shore Club for a family membership.   The defendant shall not be obligated to pay for any usage costs or charges or any minimum required monthly usage expense other than those costs and charges made by the defendant.

(5) The defendant shall pay the plaintiff periodic alimony in the amount of $56,000 per month.   The payments will be made on the first day of each calendar month.   The January 2012 payment will be made immediately for the remaining nineteen days in the pro rated amount of $34,323.

(6) The defendant shall maintain, at his own cost and expense, all medical, hospital, optical, and dental insurance for the plaintiff provided by the law firm Paul, Hastings, Janofsky & Walker, LLP, U.S. Health Plan, Aexcel Plus Managed Choice POS (Open Access).

(7) The plaintiff shall pay all her uninsured and unreimbursed medical, optical, eye care, including glasses, surgical, hospital, chiropractic, dental, orthodontic, psychiatric, psychological, psychotherapeutic, nursing, counseling, and therapeutic expenses as well as the cost of prescriptive drugs for herself.   The plaintiff shall pay all co-pays and deductibles attributable to said plaintiff's health costs.   The defendant shall promptly forward to the plaintiff all health insurance reimbursements he receives with respect to health expenses the plaintiff has paid on behalf of herself.

(8) The plaintiff shall forward to the defendant invoices for which the defendant is responsible within five days after receipt of such invoices.   The defendant shall confirm payment made to the providers by sending to the plaintiff a confirmation of payments made by the defendant within five days of making such payments.

(9) The defendant shall be entitled to the income tax deductions for all interest paid by him on account of the Citi Bank mortgage on the Larchmont, New York house to the extent permitted by the taxing authorities.

(10) The defendant shall be entitled to the income tax deductions for all real estate type taxes paid by him on account of the Larchmont, New York house to the extent permitted by the taxing authorities.

(11) The defendant shall be entitled to credit in a pro rata manner for all payments made prior to January 13, 2012 to the plaintiff or on behalf of the plaintiff for expenses that will accrue after January 13, 2012.   One example of such payments are the utility bills for the Larchmont, New York house.

(12) The defendant shall pay all family bills incurred through January 12, 2012 that he has been customarily paying.   The defendant after paying said bills shall be entitled to a pro rata credit in the manner set forth in paragraph (11).

(13) The court will retain continuing jurisdiction over any adjustments and/or credits necessary to put these orders into full force and effect.   Despite this order the defendant shall continue to pay the total $56,000 per month periodic alimony without any reduction whatsoever.

(14) The order of pendente alimony is effective immediately.   Any claim or request for retroactivity is denied.

(15) The defendant shall furnish to the plaintiff current and updated complete copies of all of the health coverages in effect by the defendant's law firm Paul, Hastings, Janofsky & Walker, LLP, U.S. Health Plan, Aexcel Plus Managed Choice POS (Open Access) for both the plaintiff and the three children.   This shall include but not be limited to the document offered as Ex. 71D.

(16) The defendant shall have the right to apply for a reduced real estate assessment and/or real estate taxes for the Larchmont, New York house in the name of the plaintiff and the defendant.   He shall prosecute that application or applications at his own cost and expense.

(17) The defendant shall pay for and maintain his existing life insurance policies and continue to name the beneficiaries thereof as they were named on June 7, 2010.   The defendant shall not pledge, hypothecate or borrow against said life insurance policies.

(18) The plaintiff shall be entitled to claim the three children as dependents for income tax purposes pendente lite.

(19) This $56,000 monthly periodic alimony order is taxable to the plaintiff and deductible to the defendant.   The court has added into the $56,000 alimony order an amount that provides for the income taxes that the plaintiff will incur.   The court assumes that the plaintiff will be filing as head of household.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.