Wendy L. Pemberton v. Robert D. Pemberton (2012)

AMENDED MEMORANDUM OF DECISION (Amendment to Memorandum of Decision dated May 2, 2012 Amendment is Addition to Orders—# 16)

A review of the record reveals that the parties were married on May 31, 1985.   There are two children, issue of this marriage;  the eldest daughter, Leah Pemberton born October 6, 1991, a junior at UConn, and Caitlin Pemberton born October 24, 1994, who will graduate high school in June 2012.

A limited contested trial was held before the undersigned on May 1, 2012.   Both parties appeared 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 proven by a fair preponderance of the evidence the following facts:

1. The husband is 51 and in good health.   He is an airline pilot, previously earning $135,000 per year until downsizing cost him his job through no fault of his own.   He presently works at JetBlue earning $51,850 per year;  $997 per week gross and $708 per week net.   If he is not promoted, that is likely to be his general salary range.   If he is promoted to a captain, an eventuality about which he is not optimistic, his salary would more than double.

2. The wife is 49 and is a high school graduate.   She presently works at CVS pharmacy earning $210 per week at 20 hours per week, netting $156.   It is expected that after her training, she will more than double that salary.   She has never earned more than $12 per hour, being primarily a stay-at-home mom during most of the course of the 27–year marriage.   Her earning capacity is found to be $25,000 per year once her training concludes.

3. Up until the husband's job loss, the parties enjoyed a good lifestyle, paid their bills, saved their money, accumulated no debt and lived well but within their means.   Presently, the parties are unable to manage their expenses on their collective incomes.   There is no debt.   They have spent a good part of their liquid savings.

4. The marital assets include the marital residence with a $57,000 mortgage.   It is presently listed for sale.   The husband believes the home to be worth $237,000 which is the last offer they received.   They had originally listed their house for $299,000, then $275,000 and now $250,000.   The balance of the assets include the husband's 401(k) plan in the amount of $361,000, the husband's IRA in the amount of $51,000, the husband's People's Bank account in the amount of $16,100, the Ameritrade stock account in the amount of $14,000, the joint Bank of America account in the amount of $200, the husband's Toyota vehicle worth $7,000 and the Oldsmobile which the children drive valued at $500, the wife's Fidelity IRA valued at $28,000, the wife's Chelsea IRA valued at $6,000, the wife's Dime Savings Bank account valued at $100, the wife's Chelsea Groton bank account valued at $4,500 and the wife's motor vehicle valued at $10,000.   In addition, there exists approximately $65,000 in 529 plan college funds for the benefit of the children.

5. The parties entered into a stipulation during the trial regarding the filing of a 2011 amended tax return, preserving the children's 529 plans for the children's college and the agreement to arbitrate the issues of personal property if they were unable to resolve their differences.   That stipulation is incorporated by reference and made an order of this judgment.

6. The parties also agreed that they would share joint legal custody of the 17–year old child (who turns 18 on October 24, 2012) with primary residence with the mother.   It is expected that she will go to college in the fall of 2012.

7. The main dispute revolves around the marital residence with significant equity.   The court finds that the marital residence has a value of $237,000 with a mortgage of $57,000 or equity of approximately $180,000.   Since the parties are presently residing under the same roof, with their children in uncomfortable circumstances, the husband proposes to buy out the wife for her share of the marital residence either by refinancing the mortgage or by borrowing from family.   He would most likely continue to market and sell the home but that would be his choice.

8. The court finds that if the marital home was sold at $237,000, they would pay a real estate commission of $14,220, the mortgage payoff of $57,000, a state conveyance tax of $1,180, a town tax of approximately $260, closing costs of approximate $2,000 and net out $162,000.   The husband argued that there would be approximately $5,000 of fix-up costs to make it presentable but the $237,000 offer already took that into consideration.

9. The wife did not wish to retain the residence and suggested in her proposed orders that they continue to reside under the same roof until the home is sold.   She does not appear to have the borrowing power to refinance the mortgage in her own name or to borrow money to buy out the husband nor did she propose that possibility.

10. The court finds that the most sensible manner to dispose of the house is for the husband to pay to the wife her share of the equity in the home so that she could relocate to a rental or to a modest purchase in the immediate area while he continued to retain the marital residence or sell it.

11. The question of fault consumed a large amount of the trial time but the court finds that after 27 years of marriage, neither party is more to blame than the other and sadly, it has simply ended.

12. The husband offered to pay no alimony whatsoever while the wife requested 14 years of modifiable alimony.   The court finds that the length of the marriage, the husband's superior earning capacity and his superior earnings requires a significant period of alimony.

13. The parties stipulated and agreed that they would continue to maintain whatever life insurance presently exists and that the wife would attempt to obtain life insurance through her employer if available.   The parties further agreed that the husband would maintain medical insurance for the children for so long as possible.   The parties agreed that they would enjoy joint legal custody of the minor child, with primary residence with the mother with reasonable rights, visitation with the father and access to be worked out between the father and the child.

14. Based on the present incomes, the child support guidelines call for child support to the mother in the amount of $170 and that the father pay 62% of any unreimbursed medical and dental expenses.

15. The court finds that if this were an intact family, that they would send their children on to post-secondary schools and therefore, the court will retain continuing jurisdiction regarding post-majority educational support.

16. The court finds that it would be fair and equitable, under the law, as it applies to the facts which the court has found that the parties share equally in the marital estate and that an alimony award from the husband to the wife be made in recognition of the husband's superior earnings and earning capacity.   This 27–year marriage was indeed a partnership with both parties contributing equally in their own way.

ORDERS

1. Dissolution may enter.

2. The wife's birth name is ordered restored.

3. The wife shall retain her $28,000 Fidelity IRA and her $6,000 Chelsea IRA. The husband shall retain his $51,000 IRA and transfer to the wife so much of his 401(k) plan so as to equalize the respective retirement accounts between the parties, valued as of the date of dissolution.   The parties shall share equally the cost of any Qualified Domestic Relations Order required to effectuate this transfer.

4. The wife shall retain her Mazda and the husband shall retain his Toyota and the Oldsmobile for the benefit of the children.   Each shall be responsible for the expenses associated therewith.

5. The stipulation entered into by the parties dated May 1, 2012 is incorporated by reference and made an order of this court.

6. The wife will retain her Dime Savings Bank account in the amount of $100, her Chelsea Groton bank account in the amount of $4,500.   The husband shall transfer to the wife $5,800 of the People's Bank account so that each party has approximately $10,350 of cash.   The husband shall transfer to the wife 50% of the Ameritrade stock account valued as of the date of dissolution, the husband shall retain the Bank of America joint account in the amount of $200 and the balance of the Ameritrade account and People's Bank account.

7. The husband shall use his best efforts to refinance the mortgage or borrow and pay to her the sum of $81,000.   At the time of receipt of said funds, the wife will quitclaim all of her right, title and interest in the marital residence and 30 days after receipt of said funds the wife shall vacate the marital residence.   If the husband is unable to make said payment to the wife within 60 days of the date of dissolution, he shall notify the wife in writing and she shall relocate within 30 days of receipt of that notice.   The marital residence will then be listed for sale and upon said sale, the parties will share equally the net proceeds after the payment of the mortgage and customary closing expenses.   At the time that the wife vacates the marital residence, the husband shall be solely responsible for all mortgage, taxes, insurances, utilities and maintenance of the home and hold the wife harmless from any expenses associated therewith.   While she resides there, she shall pay 20% of the household expenses, mortgage, taxes, insurance and utilities.   The wife's alimony and child support shall commence upon her leaving the marital residence.

8. The husband shall pay child support in the amount of $170 per week plus 62% of any unreimbursed medical and dental expenses.

9. The husband shall pay alimony to the wife in the amount of $275 per week for 14 years from the date of dissolution.   Said alimony will terminate upon the earlier of 14 years, the death of either, or the wife's co-habitation, remarriage or civil union.   It is modifiable as to amount only.

10. The parties shall exchange tax returns and W–2 forms each year by January 31 so long as an alimony obligation exists.

11. The parties shall each take one dependency exemption each year and when there is only one, the husband shall take the dependency exemption in every even year and the wife will take it in every odd year.

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

13. The husband shall maintain medical and dental coverage for the children as available through his employment at a reasonable expense.

14. The parties shall continue to maintain whatever life insurance presently exists and the wife shall attempt to obtain life insurance through her employer if available until the youngest child reaches 23.

15. Each shall pay their own counsel fees.

16. The wife shall have a “safe harbor” to earn up to $25,000 per year without that increase in income be considered a substantial change in circumstances for purposes of modifying her alimony award.

Shluger, J.

Shluger, Kenneth L., J.