Shannon Bragg v. Ralph Bragg (2012)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' eleven year marriage.   The action was commenced by a complaint dated March 23, 2011 which was returnable to the court on April 19, 2011.   The complaint was amended on the first day of trial to seek a dissolution of the marriage in lieu of a legal separation.

Both parties appeared at trial on March 1, 2012 and each was represented by counsel.   The court considered the testimony and financial affidavits of the parties and the provisions of General Statutes §§ 46b–81 and 46b–82.

As financial matters were in dispute in the contested dissolution trial, the court ordered the unsealing of the financial affidavits pursuant to Practice Book § 25–59A.

FINDINGS OF FACT

The court makes the following findings of fact.   All factual findings made herein have been made by a fair preponderance of the evidence unless otherwise set forth herein.

The parties were married in East Windsor, Connecticut on October 20, 2001.   No children were born to either party during the term of the marriage.   The plaintiff was the recipient of state aid for a time during the term of the marriage.

The parties stipulated to the following fact:  The cost to the plaintiff under COBRA to remain as a participant under the defendant's health insurance policy as available from his employer is $520 a month.

The parties also agreed that (i) they are seeking no order from the court on the marital debt as the parties intend to file bankruptcy;  (ii) the defendant's retirement asset shall be shared equally by the parties—subject to the court altering such an allocation in the construct of its financial orders;  and (iii) the plaintiff shall be obligated to inform the defendant of her receipt of a workers' compensation award if she is receiving alimony from the defendant at the time she is aware of the same, again subject to the court modifying the same in connection with the court's fashioning of the financial awards.

The plaintiff during the early years of the marriage worked at Preprint Logistics and earned approximately $50,000 a year.   She was laid off from the position in 2003 and collected unemployment for a while.   In 2003 she became employed at Petco and became a grooming manager.   She was earning approximately $35,000 a year.

On August 5, 2004 she suffered an injury at work while grooming a dog.   She injured her knee and back.   She continued to work with Petco under workers' compensation through the beginning of 2005.

Her injuries were exacerbated when she had knee surgery.   After the surgery she had blood clots which resulted in a pulmonary embolism in 2005.   She had two stays in a nursing home in 2005.

The plaintiff also suffers from psychiatric and psychological disorders.   She has been diagnosed with depression and anxiety.

The plaintiff testified that in 2011 she suffered near liver, kidney and pancreatic failure and again went into a nursing home.   She uses a wheelchair to ambulate due to nerve and muscle damage to her legs.

Due primarily to the state of her mental health, she filed a claim for Social Security Disability (SSD) in 2009.   It was approved in August 2011.   She receives $1,045 a month from SSD.

The plaintiff is also eligible for Medicare as of February 2012.   She currently pays from her SSD payment $100 a month for Medicare Parts A and B and $105 a month for part D. She pays approximately $200 a month for gap insurance coverage.

She expends approximately $300–400 a month for prescriptions above the part D allotment, and the $70 a month from workers' compensation, as set forth below, is applied to reduce that monthly expense.

Accordingly, her premiums for Medicare are approximately $205 a month, plus the $200 a month for gap coverage and prescription expenses are approximately $300 a month after receipt of the workers' compensation contribution for a total monthly expense of approximately $705.   In addition, she testified she spends approximately $120 a month in over the counter medicines and medical supplies.

The plaintiff has a pending workers' compensation case due to the injuries she suffered while at work.   The only compensation she presently receives from workers' compensation is approximately $70 a month for some of her prescription medicines.   She is seeking an award for her lost compensation and medical benefits from worker's compensation.   Future benefits to be received by a party to a dissolution action for a specific indemnity award under the workers' compensation statutes are property subject to distribution under § 46b–81 of the General Statutes even where the amount of those benefits had not been determined at the time of dissolution.  Tyc v. Tyc, 40 Conn.App. 562, cert. denied, 237 Conn. 916 (1996).

On or about September 16, 2011, the plaintiff received a lump sum distribution from the Social Security Administration in the amount of $14,891.25 as the sums she was due for February 2010 through August 2011.

On October 19, 2011, the parties agreed to modify pendente lite alimony from $375 to $260 a week.

The plaintiff continues to live in a home owned by her father.

The defendant has a high school education.   He has worked his way up through various companies to now be a product support manager for a construction crane dealership.   He has been employed at his present company since July 2010.

His gross salary is $78,000 a year.   As his health insurance plan is a high deductible plan which has a deductible of $2,500 for the defendant and his spouse, his employer generously funds $2,500 of the deductible into his health savings account.   The defendant contributes the additional $2,500 of the annual aggregate deductible through pre-tax dollars.   As noted above, the parties stipulated the COBRA cost for the plaintiff to remain on his plan is $520 a month.   She would continue to be subject to the $2,500 deductible.

The defendant suffers from chronic fatigue syndrome and high blood pressure.   He is under a doctor's care for his conditions and takes medication for both conditions.

Both parties agree that the early years of the marriage were good.   The plaintiff testified that she believes the marriage was good until her health deteriorated.   The defendant disagreed and testified that the marriage began to suffer in 2003 due to financial stresses.

The plaintiff was the money manager in the family.   The defendant testified that despite his concerns beginning in 2003, he was unaware of the extent of the problem because he had no access to the accounts.   The court finds he had no access because he did not push for the same.   It is inconceivable that he could not have gained access to the information if he had sought it.

Nonetheless, the court finds credible that there were financial issues that led to marital strain.

The court does not, however, attribute greater fault to either party for the breakdown of the marriage.   The breakdown occurred due to unforeseen health issues.

ADDITIONAL FINDINGS AND ORDERS

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

1. Dissolution of the Marriage

The court has jurisdiction in this matter which has been pending for more than ninety days.   Both of the parties lived in the State of Connecticut for more than one year prior to the institution of the action.

The marriage has broken down irretrievably.

The court finds the allegations of the complaint have been proven and are true.

The marriage of the parties is hereby dissolved, and they are each hereby declared to be single and unmarried.

2. Alimony

(a) Based upon the statutory factors, including without limitation, the age, education, earnings, vocational skills and work experience of the plaintiff and of the defendant, a time-limited award of alimony is appropriate.   See, Ippolito v. Ippolito, 28 Conn.App. 745, cert. denied, 224 Conn. 905 (1992).

The defendant shall pay to the plaintiff $300 per week as and for periodic alimony until March 31, 2015 and $200 a week for the period from and after April 1, 2015.   The alimony shall terminate on the earlier to occur of (i) March 31, 2017;  (ii) the death of either party;  or (iii) the remarriage of the plaintiff.   The provisions of General Statutes § 46b–86(b) shall also apply.

The court orders that alimony is to be paid by immediate wage withholding.   It is the intention of the court that this order shall be non-modifiable by either party as to term.

The alimony shall be includable as income to the defendant and deductible by the plaintiff on his income taxes.

(b) The defendant is awarded $1 a year alimony.   The alimony shall terminate on the earlier to occur of (i) December 31, 2017;  (ii) the death of either party;  or (iii) the remarriage of the defendant.   The provisions of General Statutes § 46b–86(b) shall also apply.

(c) In addition to the above alimony awards, each party shall pay the other $1 a year alimony to protect the interest of the State of Connecticut in this matter.   This award of alimony shall terminate on the earlier to occur of (i) the death of the wife or the husband or (ii) the remarriage of the wife or of the husband.

3. Workers' Compensation Award

For so long as the defendant is obligated to pay alimony to the plaintiff, the plaintiff shall notify the defendant within ten business days of the date on which she learns of the settlement of her pending workers' compensation claim.   The settlement of the claim shall constitute a substantial change in circumstances for the modification of the foregoing alimony orders.

The court is not, otherwise, awarding to the defendant any amount or percentage of the settlement the plaintiff receives as a result of her pending claim.   The court, in setting the alimony award above, had taken into consideration, among other factors, the determination that the defendant is not receiving a portion of the pending claim despite it being a marital asset.

The court shall retain jurisdiction over this provision.

4. Retirement Asset

The defendant shall transfer to the plaintiff 50% of the value of his Shawmut Equipment company, Inc. Profit Sharing Plan including its 401(i) component as of the date of the dissolution of the marriage, together with a 50% share in the market earnings/losses from the date of dissolution until the date of the distribution.   The transfer shall be effectuated by means of a Qualified Domestic Relations Order (“QDRO”), or other appropriate means.   The parties shall equally share in the expense of the preparation and filing of the QDRO. The court shall retain jurisdiction to deal with any issues which may arise in connection with and to effectuate the transfer of this asset.

5. Medical and Dental Insurance

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

6. Automobiles

The defendant shall retain the automobile which he is currently driving, free and clear of any claims by plaintiff.   The plaintiff shall retain any insurance proceeds that may be paid due to the theft of the automobile she was driving or the automobile itself in the event it is recovered and returned to either party, in either event free and clear of any claims by the defendant.   Specifically, the defendant shall retain the 2002 Ford Ranger shown on his financial affidavit and the plaintiff shall retain the 1995 Chevrolet Blazer or insurance proceeds payable as a result of the theft of the same.   Each party shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register any vehicle so awarded.

7. Bank Accounts, Stocks and Personal Property

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

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

8. Liabilities

Each party is responsible for their own debts.

9. Tax Returns and Indemnification

If 2011 tax returns have not yet been filed by either of the parties, the parties shall meet with a tax professional to determine if it would behoove them to file the 2011 federal and state tax returns as married filing jointly or separately.   If by filing jointly a tax refund would be generated, the parties will do so and the refund will be shared equally.   If by filing separately any tax liability would be due, then the tax liability shall be payable by the parties in accordance with their percentage of 2011 taxable income.   If they file separately, each shall be liable for their own tax liability and shall retain their own refund.   The cost of the tax professional shall be borne by the defendant.   The parties shall cooperate with each other to accomplish the foregoing.

If the parties or either of them has already filed a tax return, then the other party shall file separately and be responsible for and retain his or her own liability and refund, respectively.

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.

10. Attorneys Fees and Costs

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

11. Effectuation of Orders

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

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

SO ORDERED.

BY THE COURT,

Olear, J.

Olear, Leslie I., J.