Jeannette M. Svata v. Lubos Svata (2012)

MEMORANDUM OF DECISION

The plaintiff who was a resident of Colchester, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on March 23, 2010.   At the time, the defendant was a resident of Colchester, Connecticut.

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

A limited contested trial was held before the undersigned on November 10, 2011, December 2, 2011 and January 19, 2012.   Both parties appeared at trial and were represented by counsel.

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

FACTUAL FINDINGS

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

1. The plaintiff and the defendant whose maiden name was Wildowsky were married on September 7, 1997 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 is one child born to the wife since the date of the marriage;  namely, Eve Marie Svata born September 25, 2006.   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. During most of the marriage, the husband was unable to get along with the wife's troubled son starting when the boy was only 6. The husband was mean-spirited, bigoted, manipulative and difficult.   The cause of the dissolution is found to be primarily his.

7. During the trial and during his deposition, the defendant's testimony was evasive, guarded, punctuated with failures of memory as to many essential facts and generally untruthful.   His sworn testimony during his deposition was contradicted by credible evidence presented to the court.

8. The defendant testified that his parents have consistently and continuously deposited money into his bank account totaling approximately $1,200 per month (see Exhibit 9a and 9b) in addition to allowing him to utilize their credit card.   He testified that on or about October 2011, his parents “cut him off from all further assistance, a fact which was contradicted by his own testimony that his parents had given him $5,000 to purchase a vehicle within the past two weeks, that his mother continue to provide him with cash assistance without his father's knowledge and that his use of the credit card continues through and including the present time.   The court finds that this cash assistance is regular and continuous and should be considered in determining the defendant's “income.”

9. The parties have been separated for several years with the husband vacating the marital residence to North Carolina and then to the basement apartment of their Colchester rental home on Dorset Road.

10. The Colchester rental home, which has a paying tenant upstairs, is presently threatened with foreclosure.

11. There presently exists as marital assets the marital home valued at $175,000 but subject to a $199,000 mortgage and negative equity of $24,000, a rental home in Colchester valued at $161,000 subject to a $165,000 mortgage and negative equity of $4000 and a home in North Carolina valued at $55,000 subject to a $55,000 mortgage with no equity.   The husband is seeking ownership of none of the real estate.   The wife has a 2000 Ford Explorer valued at $500.   The husband has a 2001 Oldsmobile valued at $4,000.   The husband has camera equipment valued at $3,200, a bank account valued at $100 and premarital retirement accounts valued at $13,000.   The wife has bank accounts valued at $900 and a 401(k) plan with a net value of $16,000.

12. The parties' debt includes credit card debt of approximately $20,000 and a legitimate loan to the father of the wife in the amount of $15,700 which the parties regularly paid during the course of the marriage.   In addition, the husband claims, unconvincingly, that there are “loans” to his parents in the amount of $33,000 for which payments have never been paid.   The court finds that these sums given to the husband from his parents are more in the nature of gifts.

13. The husband testified that the family coin collection belongs to their daughter.

14. The parties are being sued by a former tenant claiming the failure to return a security deposit.   Both parties are found to be equally responsible for that debt and shall share any expense equally.

15. The wife is 45 years old and suffers from Crohn's Disease.   She is a licensed social worker earning $976 per week.   The husband is 52 years old and in good health except that he is nearly deaf.   He is a trained and skilled race car mechanic and vintage car restoration expert but has been unemployed since the week that he was served with divorce papers.   His rate of pay at that time was $60,000 per year.   He acknowledged that his earning capacity is between $1,000 per week and $1,200 per week.   In addition, he is able to work side jobs and in addition to that, he receives approximately $2,000 per month from his parents, tax-free.   He expects to return to work momentarily but testified, in response to a question from the court, that he has only applied for one job in the past six months.   The court finds that the husband's earning capacity is $1,154 per week.

16. The husband's presumptive child support obligation is $160 per week plus 48% of any unreimbursed medical and dental expenses and work related day care expenses.

17. Both parties love their daughter absolutely.   She appears to transition between the two homes relatively easily however both parties criticized the other's parenting;  the wife claims that the father's residence is unsafe, cluttered and that he frequently takes their daughter to a pawn shop.   The husband claims that the wife exposes the child to fleas from her cats and is a poor housekeeper which the court finds to be unfounded.

18. While the husband is unemployed and the child is not yet of school age, the present parenting plan, wherein the husband parents the child during the week from Tuesday at 10 a.m. until Thursday at 8 p.m. and some weekends, seems to work in the child's best interest.   Once the husband begins regular work and the child begins school, a different schedule will be necessary.

19. The wife's grown son is no threat to the daughter of the parties;  the mother, a licensed clinical social worker is an excellent protector of their daughter.

20. The parties stipulated and agreed that a shared parenting plan dated August 1, 2011 shall apply.   The parties will enjoy shared custody of the minor child with primary residence in the mother.

21. The court finds that if this were an intact family, it is likely that the parents would have provided post-majority educational support to the children so the court will retain continuing jurisdiction regarding post-majority educational support pursuant to CGS § 46b–56c.

LEGAL DISCUSSION

“The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”   Gervais v. Gervais, 91 Conn.App. 840, 841, cert. denied, 276 Conn. 919 (2005).

CUSTODY AND VISITATION

“Under Connecticut law, the trial court's discretion as to custody and visitation is not limited to [adopting the specific custodial arrangement sought by one of the parties].   It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement ․ Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child.”  Feldman v. Feldman, 37 Conn.App. 397, 403–04 (1995).

In any custody order, the court is bound by what is in the best interests of the child.  Simons v. Simons, 172 Conn. 341 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260 (1953), Connecticut General Statutes § 46b–56.   The court must also give consideration to the preference of a child or children if that child is of sufficient age to be capable of forming an intelligent decision.   The rights, wishes and desires of the parents are also a factor to be taken into account.   Both considerations, however, must be subordinated to the best interest of the child.  Ridgeway v. Ridgeway, 180 Conn. 533, 541 (1980).

The existing parenting plan is good but will require some changes;  when the child begins school and when the father resumes employment it will require greater changes.

PROPERTY DISTRIBUTION

General Statutes § 46b–81(a) provides in relevant part:  “At the time of ․ dissolving a marriage ․ the Superior Court may assign to either the husband or wife all or any part of the estate of the other.   The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”  Connecticut General Statutes § 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, 363–364 (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. 398–400.”  (Emphasis in original.)   Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).   In fact, the court has the authority to assign the debts and liabilities and to order one party to assume the joint liabilities of both parties.  Bento v. Bento, 125 Conn.App. 229, 235 (2010).

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

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

The court in Krafick v. Krafick, 234 Conn. 783 (1995), held that the purpose of § 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.

ALIMONY

Connecticut General Statutes § 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).

ORDERS

The court orders the following:

The parties shall enjoy joint custody of the minor child with primary residence with the mother pursuant to their shared parenting agreement.   Neither party shall injure the child's opinion of the other parent by their words or their actions.   Neither parent shall permit any third party to injure the child's opinion of the other parent by their words or their actions.   Neither party shall discuss any adult matters with the child, including but not limited to this trial or any other court-related matter.

2. The father shall have the minor child each week from Tuesday at 10 a.m. until Thursday at 8 p.m. Twice per month, the father's access shall be from Saturday at 3 p.m. until Sunday at 6 p.m. Any additional time shall be by mutual agreement.   The parents shall have mutually agreed holiday access with the child and two weeks of summer vacation with the child in the United States or in Canada with 45 days written notice.   The father shall give the mother 48 hours notice of his intent not to exercise access time.   When the father has secured employment, his visitation will be every other weekend from Friday at 3 p.m. through Sunday at 6 p.m. and each Wednesday from after school until 8 p.m. or return her to school or to mother on Thursday morning if she is not in school.   The child shall have her own bed in both parents' homes and shall be encouraged, absent exigent circumstances, to sleep in her own bed.   The father shall not leave the child at the shop known as PS WeSell for more than 60 minutes at a time.

3. The husband shall pay child support to the wife in the amount of $160 per week and the parties shall divide equally any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, or work related day care costs.

4. The husband shall pay alimony to the wife in the amount of $1 per year, modifiable in the event of the wife's medical inability to earn an income.   Said alimony will terminate upon the earlier of the death of either, or the wife's co-habitation, remarriage or civil union.   It is modifiable as to amount only.

5. The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to CGS § 46(b)–56c.

6. The wife shall maintain medical and dental coverage for the minor child as available through her employment at a reasonable expense.

7. The husband shall quitclaim to the wife all of his right, title and interest in the marital residence, the property located at 56 Dorset Road, Colchester and the property located on Hook's Haven Lane in North Carolina as was his choice.   She shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the husband harmless and indemnify him for any such expenses.   Notwithstanding, if the wife sells any of those properties within the next two years, the husband shall be responsible for 50% of any loss associated therewith.

8. The husband shall vacate the property at 56 Dorset Road, Colchester within 75 days of the date of dissolution.   Until such time as he vacates the premises, he will continue to contribute his $480 per week unemployment compensation check and his $500 per month rent on or before the 10th of each month.

9. The husband shall retain his Oldsmobile motor vehicle and the wife will retain her Ford motor vehicle.   Each party shall pay the expenses associated with said vehicles and hold the other harmless as to any such expenses.   The wife will retain the personal possessions and appliances in the marital residence and the North Carolina home and the husband will retain the appliances and the personal property in the Dorset Rd. home ․ The husband shall retain the camera equipment.

10. Each party will pay 50% of any money due to their former tenant who is suing them in small claims court.

11. The daughter of the parties will retain the coin collection which the father testified belongs to her.

12. The money advanced from the parents of the husband is found to be in the nature of a gift rather than a loan.   The debts on the wife's financial affidavit, including the loan payable to the father of the wife, are found to be marital debts totaling $36,000.   The husband shall pay 50% of that marital debt or $18,000 to the wife within three years at the rate of $500 per month commencing April 1, 2012.

Each shall keep their own bank accounts and retirement accounts.

14. The husband shall be entitled to take the dependency tax exemption each even year so long as he is current on his child support as of December 31.

15. Each shall pay their own counsel fees.

16. Each party will use their best efforts to obtain $100,000 of life insurance on their life, naming the other as the trustee for the child's benefit, so long as there exists a child support obligation.

17. The husband will complete the parenting education course within 60 days.   The requirements of the course are waived as to the wife as she is a social worker having taught said course.

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

19. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.