Leszek Schoenborn v. Malgorzata Schoenborn (2012)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' eleven-year marriage.   The action was commenced by complaint dated January 20, 2010, and returnable to the court on February 23, 2010.   The husband sought the dissolution on the grounds of adultery and intolerable cruelty under General Statute § 46b–40.   The wife filed an answer and cross complaint dated May 10, 2010 wherein she averred the marriage had broken down irretrievably.   An amendment to the cross-complaint dated January 24, 2012 was filed.   The trial was conducted under the cross-complaint.

The parties appeared at trial on February 2, 16 and 17, 2012.   The husband at the time of trial was self-represented and the wife was represented by counsel.   The court heard testimony from the guardian ad item (GAL) for the minor children, Attorney Otto Iglesias, and from five witnesses, including the parties.   The court received into evidence eleven exhibits.   The court considered all of the evidence presented, applicable common and statutory law, including without limitation, General Statutes §§ 46b–56, 46b–56a, 46b–56c, 46b–81, 46b–82, 46b–84, and 46b–215a, and the provisions of the Child Support and Arrearage Guidelines.   The findings of fact made by the court have been made by a fair preponderance of the evidence.

There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25–59A(h).

FINDINGS OF FACT

A. Procedural History, Pending Motions and Preliminary Matters

On July 14, 2011, by agreement of the parties and while each were represented by counsel, Attorney Iglesias was appointed as the GAL.

On August 4, 2011, by agreement of the parties a pendente lite parenting plan was put in place.

On October 27, 2010, the court approved the agreement of the parties that pending pendente lite motions were continued for the trial with respect to issues of retroactivity (113).   The trial was scheduled for February 24 and 25, 2011.

On January 5, 2011, the parties were referred to family relations for a comprehensive evaluation.

On January 6, 2011, the wife filed a Motion for Order of Compliance and Sanctions, Pendente Lite. The motion was filed as the husband on July 28, 2010, in response to the request for Mandatory Disclosure, replied that tax returns for the prior five years would be produced.   As of January 6, 2011, the tax returns had not yet been produced.

On March 1, 2011, the parties agreed to undergo a psychological evaluation with Dr. Stephen Humphrey.   The agreement was approved and ordered by the court (119).

On June 10, 2011, the parties agreed and the court ordered the plaintiff to pay child support at the rate of $361 a week in accordance with the child support guidelines retroactive to the initial date the motion appeared on the court calendar of May 10, 2010.   The court did not find an arrearage at that time and it was left to the parties to agree on the amount of the same or it would be determined at a later court date.

On September 29, 2011 the wife again filed a motion for order of compliance due to the husband's continuing failure to produce his tax returns (129).

On October 19, 2011 the parties agreed and the court ordered a modification in the husband's parenting time with the parties' twin daughters (130).

On November 2, 2011, the court ordered the husband to file his tax returns by December 6, 2011(131) and a compliance date was set.

On January 3, 2012, the plaintiff's counsel filed a motion to withdraw (132).

On January 4, 2012, the court, Carbonneau J., ordered the husband to produce his tax returns by January 18, 2012 and if compliance was not had by that date, the husband was ordered to pay $750 in attorneys fees and $50 a day until the documents were produced (133).

On January 13, 2012, the defendant filed a Motion to Compel and Sanctions, Pendente Lite seeking an order compelling the plaintiff to execute the documents required to renew the passports of their children (134).

On the first day of trial, the plaintiff's counsel (his third) requested to have her motion to withdraw granted citing the failure of the plaintiff to cooperate with her.   The court canvassed the plaintiff as to his rights and responsibilities in the event he proceeded to trial as a self-represented litigant.   The plaintiff did not object to the withdrawal of his counsel.   The court permitted counsel to withdrawal and the trial commenced.

B. Relevant Facts

1. Initial Findings

The parties were married on September 19, 2000 in Waterbury, Connecticut.   The parties lived in the State of Connecticut for at least one year before the filing the dissolution complaint.   All statutory stays have expired.

Three children were born to the parties during the marriage:  Albert was born on January 13, 2001 and Isabelle and Ingrid were born on March 23, 2002.

2. The Husband's and Wife's Education and Earnings

The defendant wife was previously married while in Poland and divorced while residing in Connecticut on January 27, 2000.   She and her former husband had a son Robert (d/o/b 10/21/89).

She studied in Poland and immigrated to the U.S. in 1988.   She then attended the University of Connecticut for her undergraduate studies and for dental school.   She was in a residency program at St. Mary's Hospital in Waterbury when she met and married the plaintiff husband.   She became a U.S. citizen about five years after she moved to this country and she is currently engaged as a self-employed dentist.

She met the plaintiff at a Polish community club concert in the spring of 1999.   He had come over from Poland on a tourist visa and remained after its expiration.   The plaintiff was at the time of the marriage involved in acquiring properties, renovating them and renting them out.   He remains so engaged.

The defendant finished her residency in July 2001.   She obtained various positions until February 2002 when she was hospitalized due to complications from carrying the twins.   She was out of work until she bought a dental practice based in West Hartford in September 2003.   The dentist from whom she acquired the practice was Russian speaking and his clients were primarily Russian speaking.   The defendant speaks Russian and Polish and was therefore uniquely qualified to acquire and build the practice—which she has done.   She expanded to two offices, the other being located in Plainville.   She is clearly a driven and motivated person.

The plaintiff husband is forty-six.   His health is good.   The extent of his education is not known.

To assist her husband with his immigration status, the wife filed one joint tax return with him in 2001 and they opened and maintained for approximately six months one bank account in joint names.   The wife credibly testified that although the bank account was joint, no funds were commingled in the account and the only funds therein were generated by the husband's business ventures.

The husband's compliance with mandatory disclosure required under Practice Book § 25–32 has been abysmal.

At the start of the trial he was ordered by the court to produce an updated financial affidavit and he prepared one that day.   The February 2, 2012 affidavit reflects a weekly gross income of $2,000 and a weekly withholding tax of $1,000.   Despite signing an oath as to its accuracy, he subsequently acknowledged the deductions to his gross income as shown on the affidavit are inaccurate inasmuch as he used his financial affidavit filed in June 2010 to approximate his deductions and that affidavit reflected such deductions on the basis of an income of over $5,000 a week.

The February 2012 financial affidavit reflects that he owns (i) five pieces of property in his own name, including his residence at 35 Robbins Avenue, Newington;  a parcel on Chapman Street in Newington and a two-family home at 43 Chapman Street, Newington;  a commercial garage on Shepard Drive, Newington and an empty lot/wetlands on Main Street, Newington;  (ii) through Schoenborn & Schoenborn a single-family home at 271 Silas Deane Highway, Wethersfield;  and (iii) through various limited liability companies sixteen rental properties in Hartford.   Including the two-family home on Chapman Street and the properties in Hartford, the defendant owns, directly or indirectly, forty-three rental units in such properties.

He also owns a piece of property in Vermont with some sort of dwelling unit located thereon;  the wife testified that the premises are not habitable.   He did not list the Vermont property on his financial affidavit.

He testified, in this case credibly, that most of his tenants pay their rent in cash and that the average rental is $600 per unit.   He claimed most of the units are empty—but he also testified, inconsistently, that thirty are rented.   If thirty units are rented, then the rent generated therefrom would be approximately $18,000 a month.   Even if one can assume the above rental income approximates his actual rental income, as it is impossible to differentiate his personal from his business expenses, no approximation of his net income can be accurately determined.

The husband recently had a judgment entered against him by the water company servicing some or all of his units.   He claims not to know the amount of the judgment, but his testimony makes it appear he may be appealing the judgment.   In any event, the water company has successfully had a receiver of rents appointed.   The court did not find the husband's testimony as to the number of units affected thereby to be clear.

As found above, the husband was court ordered to file his tax returns and to produce the same to the wife.   He has not, as of the close of evidence, filed any tax returns since 2002—he testified that he is too busy.

The court finds the income, deductions and expenses shown on his February 2, 2012 financial affidavit to be totally unreliable.

The plaintiff filed a financial affidavit on June 10, 2010 wherein his gross weekly income was reported to be $5,076 and his net was $2,939—the deductions to reach that net amount included “withholding tax” at $1,000 a week.

Both parties paid cash for their properties.   There are no mortgages on any property owned by either party.   It is clear the husband has been able to generate large quantities of cash from his business ventures.   He acknowledged having a bag of money in his possession in 2010, but he believes the wife took it from his car at the time he was appearing in court in New Britain on criminal charges.¹

“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).

Based on lifestyle, the accumulation of properties and the other findings of the court, the court finds the plaintiff to have an earning capacity of $4,000 a week, gross, and a net of $2,624 a week and will base financial orders thereon.

The defendant's financial affidavit filed with the court during the trial reflects a gross weekly income of $4,867 from the operation of her practice and a net weekly income of $2,850.

She listed three parcels of property including her home at 125 Waverly Drive, Newington;  property at 20 Pine Street, Plainville which is the location of her second office;  and 470 Forest Road, Winchester.   She also owns property in New Hampshire which she neglected to include on her financial affidavit.

The defendant also failed to disclose on the financial affidavit she filed at the start of the trial that she is the holder of three loans:  one payable by the plaintiff having a balance of $19,800 and two payable by James Parker, a contractor and friend of hers, having a combined principal balance of $87,400.   She amended her affidavit to include the same.

The husband fervently believes the wife is not being forthcoming as to the amount of income she receives from her practice.   He believes she earns $1,000,000 more than she reported.   In an attempt to prove her income, he introduced medical records from her office that he said his private investigator found in the trash.²  The husband was unable to prove that her income exceeds that which she reported and the court does not find that she has an earning capacity beyond her current income.

3. Ante-nuptial Agreement

Pursuant to Practice Book § 25–2A the wife in her amended cross-complaint specifically demanded in her prayer for relief the enforcement of the partie's Ante-nuptial Agreement.

The parties executed an Ante-nuptial Agreement on September 18, 2000.   The agreement was prepared at the behest of the plaintiff and by his attorney.   The defendant wife was provided with an opportunity to review the same and although neither she nor her family was in favor of the execution of the agreement she elected to enter into the same.   The wife acknowledged she had the agreement for a few weeks to review the same.   She reviewed it, understood it and chose to go forward without obtaining the advice of independent counsel.

The defendant did not amend his complaint to seek to contest the enforceability of the ante-nuptial agreement, but during the trial he asked the court to find the agreement unenforceable.   He is seeking alimony and a share of the assets she has accumulated in her name during the term of the marriage.

The ante-nuptial agreement is governed by General Statutes § 46b–36a et seq.³  Pursuant to the statute, the burden is on the husband as he is contesting the validity of the agreement to prove the same.

The husband believes his future wife did not take the execution of the agreement seriously and that she thought it was a joke.   He believes that, in part, because she listed a bicycle having a nominal value as an asset.

The court does not agree and finds that the agreement was executed by both parties knowingly and voluntarily and that it was taken quite seriously by the wife.   After the execution of the agreement the parties abided by its terms.   The parties kept all of their assets and their debts separate with the very limited exception (limited in scope and duration) of the one-time filing of a joint tax return and the creation and maintenance of a single joint bank for approximately six months.   They went so far as to execute promissory notes when money was loaned between them.

The plaintiff further claims the agreement is not valid because the defendant failed to list all of her assets at the time of the execution of the ante-nuptial agreement.   On the schedule of assets, the wife listed the child support and alimony she was awarded at the time of her earlier divorce, but she did not list the property settlement of $12,000 which was payable to her in sixty monthly installments of $200 commencing March 1, 2000.   The wife credibly testified that she did not receive any payments from her ex-husband as required by the divorce decree and she forgot to disclose to the husband the property settlement.

Parties to an ante-nuptial agreement must provide to the other “fair and reasonable disclosure” of their property.  Friezo v. Friezo, 281 Conn. 166, 181–83 (2007).   In McHugh v. McHugh, 181 Conn. 482, 486 (1980), the Supreme Court held that:  “The duty of each party to disclose the amount, character, and value of individually owned property, absent the other's independent knowledge of the same, is an essential prerequisite to a valid ante-nuptial agreement containing a waiver of property rights.”

The court in considering the plaintiff's claim has reviewed the disclosure schedules provided by both parties at the time of the execution of the agreement.   At the time, the plaintiff had assets that exceeded $1,500,000 in value.   The total value of the assets of the defendant was approximately $1,000.   If the $12,000 property settlement is added to her asset total, without adjustment for the time value of the money, the amount she owned would have been approximately $13,000.   The value of the plaintiff's property dwarfed that of the defendant.   Further, the expectancy of the receipt of the property settlement was never realized by the wife.   While the property settlement should have been disclosed, the court does not find her failure to have done so to be a material omission.   The court finds the financial disclosure by the wife was fair and reasonable.

The plaintiff has, since the marriage, continued to acquire, renovate and dispose of properties.   He owns more properties as of the time of the divorce than he did at the time of the marriage and the value has increased by approximately $500,000.

The defendant wife, however, has increased her net worth appreciably more than has the plaintiff.   She has amassed assets having a value of approximately $1,500,000 since the marriage;  many of the assets are related to the operation of her dental practice.   The court believes the same to constitute the crux of the plaintiff's request to have the court find the agreement to be unenforceable.

Despite the change in the net worth of the wife, the court does not find the enforcement of the ante-nuptial agreement to be unconscionable as of the time of the dissolution, nor as of the time of the execution of the agreement.   The husband at the time of the marriage knew his fiancé was completing her dental residency and she was a dentist at the time of the marriage.   The increase in her income and a resultant increase in her net worth were certainly foreseeable.   Further, as found above, the husband during the marriage augmented his net worth as well.

The court finds the Ante-nuptial Agreement to be valid and enforceable.

The ante-nuptial agreement makes provision for the division of property and outlines terms with the issue of spousal support in the event of the dissolution of the marriage.   The ante-nuptial agreement provides in Section 3 that neither party shall acquire any right, title or interest in the property owned by the other before marriage, property acquired after marriage or in and to any appreciation of the property owned by the other, except for assets that are placed in joint names with rights of survivorship.   In this case, no property is owned jointly by the parties.

Section 4 of the agreement provides that both parties agree not to seek or accept and specifically waive any right to an alimony or maintenance award, periodic or lump sum, temporary or permanent.

The plaintiff husband claims that he contributed $5,000 towards the purchase of the lot at Waverly Place in Newington, that he was instrumental in the construction of the home on the lot and, accordingly, he should receive a marital share of the home.   The land and the home are solely in the name of the wife.   The wife also disputes the husband's claims of assistance.   Nonetheless, the ante-nuptial agreement addresses the claim of the husband.

Section 12 provides that if either party makes a financial contribution or any way helps to improve the value of an asset of the other, such a contribution shall not establish any claim to such property and the contributing spouse waives the right to make any claim against the other spouse, unless a written agreement provides otherwise.

Accordingly, the plaintiff has no claim against the defendant for any interest in the property at Waverly Place.

Premarital agreements are not necessarily made in advance of marriage in order to be fair to each party in the event of divorce.   The act imposes no requirement of fairness of the bargain.   In this instance however, the court finds the agreement not only to be enforceable, but to be fair, just and equitable.

4. Breakdown of the Marriage

The family lived in the Robbins Avenue home owned by the husband since approximately 2001.   Despite the fact that he was fully capable of performing renovations to the home, it remained unfinished for the several years in which the family was residing there together.   The basement would flood up to mid-calf and the sump pump would not work.   There were times there was no heat and no hot water.   The family, including the wife's son from her earlier marriage, was crowded into three bedrooms.

In 2006 the defendant bought the lot on Waverly and proceeded to have the house built.   She paid cash for the work as it progressed and it took until the end of 2008 for it to be completed.   The defendant and the children moved into the home in January 2009.

After the wife and children moved out, the home on Robbins Avenue remained in a state of disarray and the husband, somehow, blames the wife for that.   At the time of the home visit by Family Relations in March 2011, there was no furniture in the living room and there were fifteen to twenty gallon cans of paint and/or paint thinner in the living room.   The home and the yard were cluttered with renovation material.   The table and counter surfaces were covered with papers and files.   The condition was the same when the GAL made his first visit.

At the time of the second visit by the GAL, the plaintiff had freshly painted a bedroom for Albert and a bedroom for the girls, but it took him almost two years to do so.

The children are, however, comfortable in the defendant's home.

The court finds the condition of the plaintiff's home and his failure to complete the same are indicative of his lack of focus.   He has difficulty following through on matters.

The husband readily admits that he was drinking alcohol during the marriage, but he denies he was abusing the same.   There was credible evidence that he would be drinking with work crews who were supposed to be working on the defendant's home on Waverly.   He also admits to having been drinking to excess, but sees no problem with it.

The wife firmly believes that the husband continues to have a drinking problem, but there is no evidence to support that.   To the contrary, he was evaluated by Wheeler Clinic and no further treatment was deemed necessary.

Nonetheless, his drinking during the marriage contributed to its breakdown.

The husband has what may quaintly be called old fashioned ideas about his wife and her role in the marriage and family.   It is clear that he resents the time she spends working instead of being a homemaker.   He resents being asked and has often refused to watch the children on a snow day or when they are sick so that she can work;  he does not want his wife to benefit by him watching the children and he believes her asking him to do so amounts to her bullying him.

The plaintiff was so intent on portraying the defendant negatively that his testimony was just not credible.

5. Relationship of the Parties with the Children

Each parent enjoys a good relationship with the children and the children love both of their parents.   The wife supports the children's relationship with the father.   The husband does not support the children's relationship with the mother.

The defendant wife has been the parent primarily responsible for the daily care of the children;  she has seen to their medical and dental appointments;  remained in contact with the school;  supervised the completion of homework and signed the children up for their extra curricular activities.   Through travel she has provided cultural enrichment for the children.

The defendant is clearly the more structured and organized parent to a degree that she can be perceived as rigid.

The husband has only complaints about the parenting of the defendant.   At one point during his testimony and after he had provided a litany of her poor parenting of his children and of Robert, and while he may have been attempting to be facetious, he could think of one thing she did well as a parent—giving birth to the children.

Despite believing that the mother of his children is deficient, he did not elect, when given the opportunity, to take the children and provide care for them.   Although he has a very flexible work schedule, the husband will not take advantage of the same to spend time with the children—if doing so would in any way assist the defendant.

The husband has not, until lately, been involved in the children's schooling and not involved (other than by providing occasional transportation) with their extracurricular activities.   During the pendency of this case, and despite a court order to do so, he has not always taken them to their scheduled activities during his parenting time.

The husband's parenting time was changed in the fall of 2011 by agreement of the parties (and while each was represented by counsel).   The husband had been spanking the girls, they were upset by being spanked and they did not want to stay with him overnight.   He was not spanking Albert.   The husband said that Albert never lied or did anything bad to the girls, but the girls were being bullies to Albert.   The defendant wife is concerned that the father's disparate treatment of the children will affect their sibling relationship.

The court finds the wife is the parent most likely to continue to facilitate a parent-child bond with the other parent.

Unfortunately, it is going to be very difficult for them to co-parent the children.   On this topic they do agree.   The wife has been routinely sending the husband frequent emails to update him on the children's activities.   During the pendency of these proceedings he responded only twice to the many e-mails he received.

The husband believes it is impossible for the parties to communicate.   He thinks her e-mails about the children, including the ones she copied to the GAL and the children's therapist, are rude and “really bad.”   The GAL thinks otherwise.

The husband freely acknowledges that he does not initiate any e-mails about the children.   When he has called the wife, he puts the call on the speaker so the children can hear the conversation.   He sees no problem in communicating through the children.

In addition to a GAL being involved, a comprehensive evaluation was performed by family relations and a psychological evaluation of the parents and an interactional evaluation of the parents with the children were performed by Dr. Stephen Humphrey.

The GAL, family relations and Dr. Humphrey all recommend that the parents share joint legal custody and that the defendant mother have primary residency of the children.   Family relations and Dr. Humphrey recommend that the plaintiff father enjoy alternating weekends with the children from Friday evening to Sunday evening while the GAL proposes the plaintiff's weekend parenting time be a bit more limited.   The court notes the involvement of the GAL continued after family relations and Dr. Humphrey completed their evaluations and he was privy to the changing relationship between the daughters of the couple and the plaintiff father.   Clearly, it is within the court's discretion to accept or reject the opinions of expert witnesses.  Evans v. Taylor, 67 Conn.App. 108, 113 (2001).

The plaintiff believes the singular recommendations of the three professionals to be the result of collusion.   He cannot accept that he bears any responsibility for the recommendations being as they are.   He should.

The court does not find any collusion between the professionals and finds each performed their evaluations independently (and thoughtfully).

ADDITIONAL FINDINGS AND ORDERS

The court makes the additional findings and enters the following orders:

A. Jurisdiction and Dissolution

The court has jurisdiction in this matter which has been pending for more than ninety days.

The allegations of the complaint have been proven to be true.

The marriage has broken down irretrievably.

A decree of dissolution may enter.

B. Enforcement of Ante-nuptial Agreement

On September 18, 2000, the parties signed the Ante-nuptial Agreement.   The plaintiff was represented by counsel and the defendant had the opportunity to review the agreement with independent counsel but knowingly waived that right.   The parties were fully aware of the rights which they both chose to waive and there was fair and reasonable financial disclosure between them.   The ante-nuptial agreement is not found to be unconscionable as of the time of the marriage or the time of the dissolution.   The ante-nuptial agreement is valid and enforceable, incorporated herein by reference thereto and included within the judgment of this court.

C. Alimony

Pursuant to the Ante-nuptial agreement, neither party is awarded alimony.

D. Child Custody and Parenting Plan

The court makes the following orders and finds the same to be in the best interest of the minor children:

1. Custody

The parents shall share joint legal custody of the minor children.   The parties shall consult with each other on all non-emergency major developmental issues affecting the health, welfare, education, religious and moral upbringing of their children.   The matters for which consultation is required shall include, without limitation religious education, educational programs and school choice matters, camp and work-related child care matters, extracurricular activities, and medical appointments and procedures.

In the event the parties after consultation are not able to reach a decision, the defendant mother shall have final decision-making authority.   For purposes of determining if there is an agreement between the parties, a non-response from the party being asked to respond shall be deemed to be assent to the matter at issue.

If a health emergency faces a parent and a decision must be made for the applicable child and there is no time for communication with the other parent, the parent having the child in his/her custody shall make the emergency decision and contact the other parent as soon as possible.

The children shall continue to engage in therapy with Melissa Kelly until she believes a discharge is appropriate or upon further order of the court, whichever first occurs.

To the extent not inconsistent with the orders set forth herein, the court adopts and orders the parenting plan set forth in the Guardian Ad Litem's Proposed Orders dated February 16, 2012.

The plaintiff is ordered to complete the parenting education program as required by General Statute § 46b–69b within ninety days of the date of this memorandum.

E. Post–Majority Education

The court finds as a matter of fact that it is more likely than not that the parents would have provided support to their children for higher education or private occupational school if the family had remained intact.   Pursuant to the provisions of General Statutes § 46b–56c, the court reserves jurisdiction to determine educational support and each party reserves their respective right to file a future motion or petition for an educational support order.

F. Child Support and Payment for Work–Related Child Care and Extra-curricular Activities

Based on the earning capacity of the plaintiff husband, the court finds his gross weekly income to be $4,000 and his net weekly income to be $2,624.   The defendant wife's gross weekly income is $4,867 and her net is $2,753.   Based on the parties' net income and the Child Support and Arrearage Guidelines Regulations, the court finds the presumptive amount of child support payable by the plaintiff husband to the defendant wife is $335 a week.

After hearing the testimony of the parties and reviewing the financial affidavits, the earnings of the respective parties, and the deviation criteria set forth in Section 46b–215a–3(b)(6) of the Child Support and Arrearage Guidelines Regulations, the court orders the husband to pay the sum of $335 a week for child support.   The court orders the child support payments to be made by immediate wage withholding, but the order is stayed until such time, if ever, as the husband obtains W–2 income or is the recipient of unemployment compensation.

The court finds the child support arrearage payable by the plaintiff husband in Section J. below is $20,216.   The arrearage so found is incorporated into and made a part of the court orders.  Evans v. Taylor, 67 Conn.App. 108 (2001).

The plaintiff husband is to repay the arrearage by payment of $1,500 on or before the 30th of March and by payment of $1,500 per month on or before the 30th of each day of the month thereafter provided the remaining balance is to be paid in full not later than February 28, 2013.

Any work-related child care, camps and extracurricular activity costs and expenses shall be borne equally by the parties.   The parties shall exchange itemized lists of expenses such party has incurred within fifteen days after the end of each calendar quarter so that an itemized list shall be exchanged every January 15, April 15, July 15, and October 15.   Any payment due from one to the other shall be made within thirty days of the exchange of information.   Failure to deliver any itemized list of expenses shall mean that the party who failed to do so has no expenses for which reimbursement is sought for the preceding calendar quarter.   For example, if the husband does not submit a list of itemized expenditures as of July 1, 2012, it will mean that he incurred no child care, camps or extracurricular activity costs for the period of April 1, 2012 though June 30, 2012.   He will accordingly owe the wife one-half of the expenses she incurred for the same period provided she has given him an itemized list thereof.

G. Medical Insurance

Each of the parties shall maintain, at their own expense, medical and dental insurance coverage for themselves.

As for the children, the wife shall maintain medical and dental insurance coverage for the children so long as the same is available to her at a reasonable cost and the husband will reimburse her for one-half of the premiums for such coverage.   If the insurance is not available to the wife at a reasonable cost, then the husband shall obtain medical and dental insurance for the minor children so long as the same is available to him at a reasonable cost and the wife shall reimburse him for one-half of the premiums payable for such coverage.

The parties shall each be responsible for 50% of the amount of any unreimbursed medical, dental, optical, pharmaceutical, psychological, psychiatric, and orthodontic expenses, including any deductibles, for the minor children.   The parties shall exchange itemized lists of expenses such party has incurred within fifteen days after the end of each calendar quarter so that an itemized list shall be exchanged every January 15, April 15, July 15, and October 15.   Any payment due from one to the other shall be made within thirty days of the exchange of information.   Failure to deliver any itemized list of expenses shall mean that the party who failed to do so has no expenses for which reimbursement is sought for the preceding calendar quarter.   For example, if the husband does not submit a list of itemized expenditures as of July 1, 2012, it will mean that he incurred no unreimbursed medical or dental expenses or costs for the period of April 1, 2012 through June 30, 2012.   He will accordingly owe the wife one-half of the expenses she incurred for the same period provided she has given him an itemized list thereof.

H. Life insurance.

To the extent available to him at a reasonable cost, the husband shall maintain life insurance in an amount of not less than $250,000, naming the minor children as irrevocable beneficiaries thereon, so long as each such child is a full-time student or until each such child reaches twenty-three years of age, whichever is first to occur, and naming the wife as the trustee of the insurance benefit for the children subject to probate court supervision.

The husband shall provide proof of maintenance of said policies to the wife at least once annually.   The husband shall also notify the insurance companies to send to the wife duplicate notices of any potential lapse or cancellation for non-payment of premium for such policies.

I. Assets and Liabilities.

As provided for in the ante-nuptial agreement, each party shall retain their own assets and shall be responsible for their own liabilities, including, without limitation, the liabilities set forth on their respective financial affidavits.

J. Income Tax Filings and Tax Exemptions.

As set forth in the ante-nuptial agreement, each party shall continue to file separate tax returns for all tax years for which they were married.

For 2012 and each even-numbered tax year thereafter, for so long as there are three eligible children who may be claimed as a tax exemption, the husband shall claim two as an exemption and the wife shall claim one exemption.   In odd years, the wife shall claim two children as an exemption and the husband shall claim one.   At such time as there are two children eligible to be claimed as a tax exemption the husband shall take one and the wife shall take one in each tax year.   If there is only one child eligible to be taken as an exemption, the husband shall do so in even-numbered years and the wife shall do so in odd-numbered years.

It is a condition precedent to the husband claiming a child as a tax exemption in each year that the husband must be current with child support for the year—that is all weekly payments of child support due for the year have been paid prior to December 31 of the applicable tax year.

The wife as the custodial parent shall in all years for which the husband may claim a child as a tax benefit, deliver to the husband as the non-custodial parent a fully executed IRS form 8322 (or successor form therefore) allowing the non-custodial parent to take the tax exemption for the minor child, so long as the child remains as a qualifying child for tax purposes.

K. Tax 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. Tax Information.

For so long as the husband has an obligation to pay child support, the parties will annually exchange their W–2s, 1099s, K–1 and similar forms by February 15 each year and will provide each other with their income tax returns within five days of filing.

M. Fees.

As to counsel fees:  The court finds the husband has, by his failure to comply with mandatory disclosure and to provide any semblance of an accurate financial affidavit or information for the trial and by the conduct of the proceedings, has unnecessarily increased the cost the wife has incurred in defending the action.

The husband shall pay to the wife the sum of $10,000 towards her legal fees.   Said sum shall be payable as follows:  The sum of $5,000 shall be payable on or before March 31, 2012 and the balance on or before April 30, 2012.

Except as above set forth, each party shall be responsible for the payment of their respective attorneys fees and costs incurred in connection with the prosecution and defense of the dissolution proceeding.

As to the fees of the GAL, each party remains responsible for their share of fees due to the GAL and they are ordered to satisfy their payment obligation within thirty days of the date of the judgment unless a different payment arrangement, which is satisfactory to the GAL (as determined by him in his sole, but reasonable, discretion), is reached within twenty days of the date of the judgment.

N. 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.

O. Pending Motions

1. The parties, after the entry of the court order by J. Prestley on June 10, 2011, did not reach an agreement on the amount of the arrearage in child support due for the period from May 10, 2010 until the initial order for child support was entered on June 10, 2011 at $361 a week.   The defendant acknowledged that he paid no child support until the entry of the order of the court.

The plaintiff husband's financial affidavit submitted as of June 10, 2010 reflected a gross weekly income of $5,076.   The gross income used to determine his child support under the guidelines prepared by the defendant's counsel was $5,077.   His net income was $1,547.   The defendant's wife's gross and net incomes were $5,193 and $2,021, respectively.   There was no evidence to support that the earnings of the parties varied from that on June 10, 2011 for the period beginning on May 10, 2010 and ending on June 10, 2011.

Accordingly, the court finds the child support arrearage to be an amount equal to $20,216 which is the product of (i) 56 weeks times (ii) $361 a week.   The arrearage is to be paid in accordance with the provisions of Section F. above.

2. The court, Carbonneau J., in order 133, ordered the husband to pay $750 in attorneys fees and $50 a day in sanctions in the event he failed to deliver his tax returns on or before January 18, 2012.   As of the conclusion of the trial on February 17, 2012, the husband had not filed tax returns for the prior nine years and, correspondingly, failed to deliver a copy of his tax returns for the prior five years to the wife and he had also failed to pay $750 in attorneys fees to the wife.

The court imposes the sanctions ordered by J. Carbonneau and orders the husband to pay:  (i) the wife's counsel $750 in attorneys fees on or before March 31, 2012;  and (ii) the wife on or before March 31, 2012, the sum of $1,500 which amount is the product of (y) $50 times (z) $30 which is the number of days after January 18, 2012 through February 17, 2012.

3. Wife's motion to compel dated January 13, 2012 is granted.   The husband is ordered to execute all documentation necessary to renew or to obtain new U.S.A. passports for the children within thirty days of the date hereof.   If he fails to deliver the same to the wife on or before the thirtieth day, he shall pay to the wife $50 a day in sanctions until the same is delivered to her.

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

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. While not in evidence, as the information was presented by the husband in the form of a question he posed to the wife during his cross-examination of her—the husband asked if she had found “$146,000 in cash in old folded hundreds” in a bag.   For the Record (FTR) 2/2/12, courtroom B–4, 2:55:40 p.m. He also made reference to the bag of money at other times during his questioning and his own testimony—but without specifics as to the amount..  FN1. While not in evidence, as the information was presented by the husband in the form of a question he posed to the wife during his cross-examination of her—the husband asked if she had found “$146,000 in cash in old folded hundreds” in a bag.   For the Record (FTR) 2/2/12, courtroom B–4, 2:55:40 p.m. He also made reference to the bag of money at other times during his questioning and his own testimony—but without specifics as to the amount.

FN2. The medical records had the names of patients of the defendant and the court, sua sponte, ordered the records be sealed as the privacy interest of the non-party patients clearly outweigh the public's interest—particularly when the records did not, in the least, shed any light on the earnings of the defendant..  FN2. The medical records had the names of patients of the defendant and the court, sua sponte, ordered the records be sealed as the privacy interest of the non-party patients clearly outweigh the public's interest—particularly when the records did not, in the least, shed any light on the earnings of the defendant.

FN3. General Statute § 46b–36g provides:Enforcement of premarital agreement.(a) A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that:(1) Such party did not execute the agreement voluntarily;  or(2) The agreement was unconscionable when it was executed or when enforcement is sought;  or(3) Before execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party;  or(4) Such party was not afforded a reasonable opportunity to consult with independent counsel.(b) If a provision of a premarital agreement modifies or eliminates spousal support and such modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such eligibility.(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law..  FN3. General Statute § 46b–36g provides:Enforcement of premarital agreement.(a) A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that:(1) Such party did not execute the agreement voluntarily;  or(2) The agreement was unconscionable when it was executed or when enforcement is sought;  or(3) Before execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party;  or(4) Such party was not afforded a reasonable opportunity to consult with independent counsel.(b) If a provision of a premarital agreement modifies or eliminates spousal support and such modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such eligibility.(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

Olear, Leslie I., J.