Marion Balestri v. Robert J. Cary, Jr. (2012)

MEMORANDUM OF DECISION

The plaintiff wife initiated this action by way of a complaint filed on March 24, 2011, seeking the dissolution of the parties' marriage, based on irretrievable breakdown.   A fully contested trial was held before the undersigned on January 26, 2011.   Each party testified and the plaintiff was represented by very competent counsel.

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

FINDINGS OF FACT

The court finds that it has jurisdiction of this matter and that all statutory stays have expired.   The plaintiff has resided continuously in the state of Connecticut for at least one year.   Neither party has received state or local financial assistance during the marriage.   The allegations in the complaint have been proven and are true.   The marriage has broken down irretrievably with no hope of reconciliation.   At the time of trial, neither party was under the influence of any alcohol, medication or drugs that would affect their ability to understand the nature of these proceedings.   This court also finds the following by a fair preponderance of the evidence:

The parties were married in Springfield, Massachusetts on August 12, 1978.   The parties have one daughter, Georgia Cary, born January 6, 1990 who is a senior in college and a son, August Cary, born in 1986, who earned two degrees in five years.

The plaintiff is 57 years of age.   She has two associate's degrees;  one in landscape technology and the other in culinary arts.   In the early years of the parties' marriage, the plaintiff worked as a chef while the defendant completed law school.   She has been employed by Connecticut College as a catering chef since 1996.   Since the filing of the dissolution, she has taken on additional hours and she is “on call” in the summertime.   She is in reasonably good health but has suffered from melanoma and thyroid problems in the past and she has had surgery on her feet.

From 2002 to 2003, the plaintiff received $50,000.00 in an inheritance from her mother.   With that inheritance, the parties made home improvements and added a new deck.   She also has inheritance interests not yet distributed of $77,500.00 from her mother's estate and $28,571.00 from her uncle's estate.   She has also received other inheritances from family members in recent years in the forms of property and money totaling approximately $100,000.00.

The defendant is 58 years of age and is in good health.   At the time of the parties' marriage, the defendant was completing his Bachelor's Degree and working in a restaurant.   He then entered and completed law school in 1986 while the plaintiff supported the family.   Upon his law school graduation, the parties celebrated the birth of their son.   The parties agreed that the plaintiff would stay home and raise the children.   Over the years, the defendant worked as an associate for several law firms in the area of family law.   In 2001, he entered a partnership with Attorney Ellen Brown.   His average earnings at the firm of Brown and Cary were between $72,000.00 and $140,000.00 gross income per year.   He currently covers abuse and neglect cases for the Mashantucket Pequot Tribe approximately four hours per week at $150.00 per hour or $600.00 gross income per week.   In 2011, the defendant received $10,000.00 for his interest in the Brown and Cary law firm, requested no clients or files but simply “walked away” from the partnership, his practice as an attorney and his career.

With respect to his health, the defendant has high blood pressure, suffers from depression and has been an alcoholic for many years.   He has maintained sobriety for the last eleven months but has not followed the professional recommendation that he take medication for depression.

In 2010, the Internal Revenue Service “froze” the parties' joint checking account.   The defendant told the plaintiff that he had an accountant “working on it.”   The plaintiff then received a letter from the IRS stating that she and the Brown and Cary law firm owed $27,000.00 to the federal government for unpaid taxes.   This was when the plaintiff learned that no law firm and personal tax returns had been filed for tax year 2008.   The plaintiff inquired about this matter with Atty. Brown and immediately paid this tax deficiency from a $116,000.00 inheritance she received from an uncle.   Atty. Brown agreed to reimburse the plaintiff for her one-half share of the firm taxes and has done so through an installment plan with the plaintiff.

During the parties' marriage, the defendant would deposit $1,350.00 in the parties' joint household checking account each week for household and mortgage expenses.   In February 2011, at the plaintiff's request, the defendant went into “rehab” for his long-standing alcohol issues.   This $6,600.00 rehabilitation program was paid for by the plaintiff, again from her inheritance.   Prior to the defendant entering “rehab,” he told the plaintiff that Atty. Brown no longer wanted to practice law with him and that he had been grieved by several different clients.   In fact, Atty. Brown offered to continue to share office space with the defendant but upon discharge from his program, he never returned to his office to practice law.   The plaintiff also learned during this period that the defendant was engaged in “concerning activities” on the internet and she chose not to pick him up from “rehab.”   She subsequently filed for divorce.   A divorce had been previously contemplated on similar grounds but not pursued.

Although the defendant testified that both parties drank heavily at various times during the marriage, he did not disagree with the plaintiff's testimony.   He was clear with the court that he has made no effort to obtain law-related employment or any employment for that matter other than to secure a four-hour-per-week job doing abuse and neglect cases for the Mashantucket Pequot Tribe.   He was also adamant that he has no intention of practicing law in Connecticut although his law license is current, and at the time of trial, thought he had resolved all grievances.   He believes that residing in Connecticut and practicing on the level he did before would be at the expense of his sobriety.   At the same time, he expressed his intent to obtain a law license in the state of Massachusetts and also expressed an interest in joining the Peace Corps.   He currently lives in his sister's house and claims to pay rent to her in “cash.”

Since the defendant's discharge from the program, the defendant has made no contributions toward maintenance of the family home or for the plaintiff's support.   The plaintiff has used her inherited money to pay the household expenses and to support herself since that time.

The parties have a number of assets, some of which are marital assets and some which are inherited assets.   Those assets include the plaintiff's several inheritances, some of which have not yet been distributed and the family home, where the plaintiff invested $50,000.00 of an inheritance toward structural and home improvements in 2002.   The assets also include retirement accounts as listed on the parties' financial affidavits (except that the defendant's Morgan Stanley account has a current balance of $50,287.00), a summer cottage in the state of Maine with a value of $60,000, and the family home with equity of $105,000.00.   The defendant has withdrawn at least $16,000.00 from his account to pay attorneys fees to defend the grievances.

The incomes of the parties are set forth on the parties' financial affidavits and include income from the plaintiff's employment at Connecticut College, income from the defendant's very part-time employment with the tribe, income from Atty. Brown to repay her share of the law firm tax debt and negligible income from the plaintiff's inherited property and from the Maine cottage rental.

In terms of liabilities, there is an outstanding balance owed for the parties' daughter's education of $8,000.00.   There are outstanding student loans in the total amount of $70,000.00 of which 53% are in the defendant's name and 47% are in the son's name.   The parties' children benefited from receiving tuition credit through the plaintiff's Connecticut College employment.

It is clear to this court that, although alcohol clearly played a factor, it was the defendant's irrational conduct and activities in the last few years of the marriage that has caused its ultimate breakdown.   There is little doubt that the defendant's professional and personal “meltdown” has been, in part, caused by his alcoholism and by depression.   However, by making his life a “do-over,” he has essentially eliminated the main source of income to this family and has walked away from his responsibility to his wife.   It may very well be that the defendant cannot maintain his sobriety and continue to work as an attorney in Connecticut.   At the same time, the defendant provided no evidence that he is unable to work in related employment such as a paralegal position or some other unrelated field altogether.

ORDERS

The court has fully considered the statutory criteria set forth previously and has carefully weighed the factors required when determining alimony including, but not limited to, the length of the marriage, causes of the breakdown of the marriage, the health of the parties, and the ability of each party to acquire future assets.   After careful consideration, this court dissolves the marriage on the ground of irretrievable breakdown.

1. Alimony. This court has taken into account the factors required for consideration and, in particular, the facts that the plaintiff has inherited income and that the defendant is battling alcoholism and depression.   The defendant shall pay to the plaintiff the amount of $1.00 per year in alimony for a period of eight years.   The alimony is taxable to the plaintiff and is deductible by the defendant.   The alimony is modifiable as to amount upon a substantial change in the parties' circumstances, including cohabitation as defined by statute.   The alimony is non-modifiable as to term and shall terminate only upon the death of either party or remarriage of the plaintiff.

2. Health Insurance.   Each party shall maintain their own health insurance.   If the defendant elects COBRA coverage from the plaintiff, he shall be responsible for all costs associated with that coverage.

3. Property.

Marital home.   The marital home is awarded to the plaintiff.   The plaintiff shall hold the defendant harmless on the mortgage and associated expenses thereon.   The plaintiff shall refinance the property within six months to remove the defendant's name from the mortgage.

The equity in the property is $105,000.00.   After reducing that amount by $50,000.00 to give credit to the plaintiff for her inheritance investment in the property, the remaining equity is $55,000.00.   The defendant is entitled to one-half of that amount or $27,500.00.   However, the defendant is expected to receive $15,000.00 in past salary from his current attorney position.   Given that the plaintiff has paid for the upkeep and mortgage on the marital home for the last year, the plaintiff shall be entitled to one-half of that or $7,500.00.   In addition, the plaintiff expended unreimbursed sums for the defendant's rehabilitation.   Therefore, the plaintiff shall pay to the defendant $20,000.00 for his interest in the marital home less any unreimbursed sums paid for the defendant's rehabilitation.

Maine Property.   The Maine property is awarded to the plaintiff free and clear of any claim by the defendant.

Vehicles. The parties shall each retain the vehicles they are currently driving and shall execute any documents necessary to transfer title and registration to the other party.   They shall each be responsible for any debts on their respective vehicles.

Inheritance. The plaintiff shall retain any inheritance that she has received or will receive in the future.

Retirement account/Investment accounts.   The parties shall retain their respective retirement accounts free of any claim of the other.   They shall also retain any investment accounts listed on their respective financial affidavits.

Other Income.   The plaintiff shall continue to receive payment on the outstanding note from Atty. Brown and on rental income for any properties that she currently owns or will own in the future.

4. Tax filings and deficiencies.   The parties shall file their income taxes separately for tax year 2011.   The defendant shall assume any deficiencies for any past tax years and for tax year 2011.

5. Tax exemptions/deductions.   The plaintiff shall be entitled to claim any eligible child as a tax exemption.

6. Mortgages, Loans and Credit Card Liabilities.   The plaintiff shall be responsible for the mortgages on the real estate and for all other loans and credit card debts listed on her financial affidavit (except the student loan debts), holding the defendant harmless with respect to those liabilities.   Likewise, the defendant shall be responsible for the loans (including the student loan debt in his name) and credit card debts listed on his financial affidavit, holding the plaintiff harmless with respect to those liabilities.

The plaintiff shall pay the remaining educational debt for the parties' daughter and shall pay any student loan debt of the parties' sons that she chooses to pay.

7. Life Insurance.   The defendant shall maintain employment provided life insurance for the benefit of the plaintiff in an amount no less than the amount available to him but no greater than $150,000.00 during the alimony period.

8. Attorneys Fees. The plaintiff shall pay her own attorneys fees.

SO ORDERED.

BY THE COURT,

Prestley, J.

Prestley, Linda Pearce, J.