Katherine Ballantine Badman v. III (2012)

MEMORANDUM OF DECISION

This dissolution of marriage action between the plaintiff, Katherine Ballantine Badman, and the defendant, John Badman III, came before the court by a writ, summons and complaint with a return date of June 16, 2009.   The matter was tried on April 11, 2012.   The plaintiff was represented by attorney Peter Truebner and the defendant was represented by attorney Jason Gladstone.   Post-trial memoranda were filed through May 7, 2012.

Both parties submitted claims for relief.   Regarding financial support, the plaintiff seeks periodic alimony in the amount of $1,050 per month, one-half of the net proceeds realized from the sale of the marital home, an order awarding the parties the personal property currently in their possession, and attorneys fees in the amount of $5,000.   She proposes that the parties be responsible for the debts set forth on their respective financial affidavits.

By way of financial orders, the defendant proposes that neither party receive alimony, that the personal property in the possession of the plaintiff be used to pay off marital debt, that the remaining debt of the parties be equally shared, that any deficiency arising out of the foreclosure of the marital residence be shared equally by the parties and the equity, if any, divided equally.   He seeks attorneys fees in the amount of $5,000 and proposes that neither party be responsible for the post-majority educational support of the children.

In rendering this decision and making the ensuing orders, the court has carefully considered General Statutes § 46b–56c as to educational support orders, General Statues § 46b–66a as to the conveyance of real property, General Statutes §§ 46b–81 and 46b–82, regarding the assignment of the marital estate, and alimony, respectively, General Statutes § 46b–62 regarding attorneys fees, the case law as it has developed regarding these matters and other relevant federal and state laws regarding the issues that confront the court.   The court has considered the parties' arguments, proposed findings of fact and proposed orders.   In the course of the hearing, the court heard testimony from the parties and the witness and received documentary evidence.

I

FINDINGS OF FACTAJurisdictional Findings

The plaintiff and the defendant were married in Newton, New Jersey on May 12, 1984.   The plaintiff resided continuously in Connecticut for at least twelve months preceding the date of filing the complaint.   The court has jurisdiction over the marriage and the parties.   There are three children, issue of the marriage:  Barbara, born April 26, 1985;  John, born December 27, 1987;  and Anne, born May 14, 1992.   All of the children have attained the age of majority.   The only issue pertaining to the children is Anne's educational support under Connecticut law.   The family has not received public assistance.

For the reasons discussed hereinafter, the court finds that the marriage between the parties has broken down irretrievably and there is no hope of reconciliation.

B

Parties

The plaintiff is presently fifty-seven years old and is in reasonably good health.¹  She earned a BA from Goucher College in biological science and a BA from the University of Maryland in landscape design.   When she met the defendant in 1983, she was a landscape designer and project manager for the Rouse Company in Baltimore, Maryland where the defendant worked as an architect.   Her maximum earnings in Baltimore were $24,000 per year.   During the marriage she worked for Site Design Associates performing landscape design four hours per day, five days per week, earning $20 per hour.   Since returning to Baltimore, Maryland in May of 2009 she has lived without cost in Oxford, Maryland in an apartment owned by her sister and brother-in-law.   She supports herself with two part-time jobs:  one at a local landscaping firm where she works thirty-seven hours per week earning $10 per hour and another at a bookstore where she works eight hours per week earning $7.25 per hour.²  While the plaintiff is hopeful that her employment opportunities will improve, she has pursued better employment opportunities for more than a year to no avail.   The court finds the plaintiff has a gross weekly income of $428 and net weekly income of $366.

The defendant is sixty-eight years old.   He enjoys multiple degrees from Yale University including a BA, a MA in architecture and a MA in environmental design as well as a long list of related certifications.   Over the years he has worked for a number of engineering companies, primarily involving government projects.   His employment history has included significant periods of unemployment.   He has experienced financial peaks and valleys, including a bankruptcy filing in the early 1990s.   He did not work from 2002 through 2007.   He is currently employed on a per diem basis for WPA in New York City where he receives daily income of $325.   The project is scheduled to last one more year and he expects to work approximately 234 days per year.   Accordingly, he has an earning capacity of $76,050 per year.   The defendant receives $187 per week from a trust established by his father in which he has no financial interest other than what is distributed by the trustee.³  His social security benefit of $1,464 per month was suspended because of an overpayment.   The Social Security benefit will resume at the rate of $1,823 per month in March 2013.⁴  Although the defendant suffers from hypertension and has difficulty lifting, he is capable of meaningful employment.   Notwithstanding what the defendant's affidavit reports, the court finds the defendant has a weekly gross income of $1,651 and net weekly earnings of $1214.⁵  The court is optimistic that the defendant's earning capacity, like the plaintiff's, may improve.   It is anticipated Social Security benefits will resume in a year and likely the parties living expenses will change in the near future.   Based on this likelihood, the court will require each party to provide documentation of income, including social security benefits, on a regular basis while any of the court's financial orders remain in effect.

C

Marital Property

Throughout the marriage, both parties made contributions to the acquisition, maintenance, preservation and improvement of the marital assets, including real estate.   While the defendant's economic contributions from employment were greater than those of his wife throughout the marriage, the plaintiff, nevertheless, made financial contributions from her inheritance and she contributed in nonmonetary ways to her family and her husband's career goals.   She was the primary homemaker for the family, and had the primary responsibility for the children during the course of the marriage.

The parties report their combined estates have a net value of between negative $109,081 and $1,034, depending who values their personal property.   The combined estates consist of the following assets owned jointly and/or by the parties individually:

The defendant is the owner of the marital property located at 20 MacKensie Glen in Greenwich.   The balance on the first mortgage is $1,650,000.   The defendant identifies the value of the house in his financial affidavit $1,550,000.   The home is in foreclosure.   The court finds that the value of the home is $1,550,000 with negative net equity of $100,000.

Neither party has investment and retirement accounts as a consequence of current and prior employment.   The parties operate a number of checking and savings accounts.   The plaintiff has Talbot Bank checking and savings accounts with values of $245 and $700 respectively.   The defendant has bank accounts with Case and Grand Bank of Florida with a combined value of $100.   There is an open Bank of America joint account with a value of zero.   The court accepts the values of these accounts as set forth by the parties on their financial affidavits.

The plaintiff operates a 2003 Lincoln Aviator with a value of $7,000, purchased used with money from her parent's estate.   The defendant operates a Lincoln SL provided by his father's trust and owns a 1987 Mercedes with nominal value.

The parties have no significant short-term liabilities held in their joint names.

The plaintiff has short term liabilities with Bank of America Visa (1) in the amount of $11,012, with Bank of America Visa (2) in the amount of $7,148, with American Education Services in the amount of $2,869, with Sallie Mae in the amount of $9,497, and attorneys fees in the amount of $2,000.   She has a loan with her sister and brother-in-law, Ron and Sarah Ryan, in the amount of $85,000.

The defendant has a Visa obligation in the amount of $14,400, the obligation noted above to the Social Security Administration in the amount of $19,842 and an obligation to Sallie Mae in the amount of $120,000.

The plaintiff claims the stated value of her personal property is $7,500.   The defendant claims the personal property in the possession of his wife and children has a value of $250,000.

D

Causes for the Dissolution of Marriage

The parties are two intelligent, hard-working people who married and lived together for twenty-five years.   No evidence was provided at trial addressing the underlying reasons for the breakdown in the marriage, which occurred between 2003 and 2004.   The parties decided to separate in early May 2009, after the defendant threatened divorce and the plaintiff “took him up on it.”

E

College Loans

The defendant asserts that the $120,000 in education loans reflected on his post-trial financial affidavit came to his knowledge on the eve of trial when he received a credit report.   It is his position that while he cosigned a loan for his son in the amount of $20,000 he did not authorize or approve any other loans, and that they were undertaken without his knowledge as a result of a conspiracy between the plaintiff and their children.   The assertion aside, there was no credible evidence presented to the court that he was not in fact a signatory to the Sallie Mae obligations totaling $120,000.

F

Personal Property

As noted above, the plaintiff identifies in exhibit 1 $7,500 of personal property made up of books, clothing and furnishings.⁶  The defendant asserts that the personal property in the possession of the plaintiff has a value of $250,000.⁷  Neither party introduced into the record any other evidence concerning the value of their personal property.   No expert testified.   There is insufficient evidence available to make a finding regarding the value of the property.⁸  The central dispute in the case arises out of the defendant's position that the parties' personal property, much of it jewelry, represents what little is left of their wealth and should be sold to pay their debts and meet their obligations, and the plaintiff's position that everything of value was gifted to the children or divided by agreement before the action commenced.

The plaintiff testified that the parties discussed the possibility of a divorce during the first week of May 2009.   Indeed, the defendant, with the assistance of their oldest daughter, Barbara, prepared documents on LegalZoom, and together the parties discussed how their property would be distributed.   On the night of May 12, 2009, and during the day of May 13, 2009, the parties walked through the marital home, identified the better furnishings and personal property, and assigned property to each other or one of the three children.   On the evening of the May 12 the parties divided and distributed all of their jewelry among the three children.   At the defendant's direction their oldest daughter and son obtained safe deposit boxes for the jewelry.   On May 13, just as the storage pod arrived to secure the plaintiff's furnishings for their delivery to Maryland, the plaintiff suffered an aneurysm and was taken to the hospital in an ambulance.   In her absence, the children, with their father's assistance, filled the pod with the plaintiff's furnishings.   Included in the plaintiff's pod were items designated for the children, most of which have long since been distributed to them and remain in their possession.   As a result, the personal property of the parties was divided:  into furnishings for the plaintiff, all the jewelry and certain furnishings for the children, and all that remained in the marital home for the defendant.

In essence, the plaintiff claims that with the knowledge and consent of each party all of their property was divided and distributed prior to her signature on the May 20, 2009 writ and complaint.⁹  The defendant contends, generally but not specifically, that most of the property was taken by the children without his knowledge or consent.   He asserts that a substantial number of items were taken well before the pod arrived and that it took some time before he realized all of the items that were removed from the property.

The parties' oldest daughter, Barbara, testified reluctantly, but firmly, that in May 2009, just after she finished her first year at the University of Virginia, she returned to live in Greenwich and was present when her parents made the decision to divorce.   She testified she was present when her parents went through the home identifying and delegating items to each other and the three children.   After her mother fell ill and was hospitalized, she completed the project and assisted her father in packing her mother's storage pod for its transit to Maryland on May 18, 2009.   She contends that half of the household furnishings remained when she left.   She acknowledges that she and her siblings received a significant amount of jewelry from her parents, and no longer have a relationship with her father, with whom she last spoke in June 2009.¹⁰

In summary, the plaintiff asserts the parties distributed their marital estate to each other and their children openly and voluntarily.   The defendant asserts the bulk of their most valuable personal property was distributed without his knowledge and consent—dissipated in a fraudulent manner—in anticipation of the divorce in order to leave him with nothing but the bulk of the debt.

“[D]issipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.”   Gershman v. Gershman, 286 Conn. 341, 351, 943 A.2d 1091 (2008).  “The party who has control over marital assets and is charged with their dissipation has the burden of accounting for those assets ․ This burden is met by a preponderance of the evidence.”  (Citation omitted.)  Manaker v. Manaker, 11 Conn.App. 653, 528 A.2d 1170 (1987).  “[A] party that dissipates assets detracts from the preservation of those assets.   Accordingly, Connecticut trial courts have the statutory authority, under § 46b–81, to consider a spouse's dissipation of marital assets when determining the nature and value of property to be assigned to each respective spouse.”  Finan v. Finan, 287 Conn. 491, 500–01, 949 A.2d 468 (2008).  “[A] trial court should consider preseparation dissipation of marital assets, so long as the actions constituting dissipation occur either:  (1) in contemplation of divorce or separation;  or (2) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown.”   Id., 493.

In order to consider the personal property described by the defendant in determining the nature and value of the property to be assigned to each party, this court must first find financial misconduct on the part of the plaintiff.   As the defendant has charged the plaintiff with dissipation, the plaintiff has the burden of accounting for the assets by a preponderance of the evidence.   In establishing a definition of dissipation, our Supreme Court noted in Gershman v. Gershman, supra, 286 Conn. 346, that “[g]enerally, dissipation is intended to address the situation in which one spouse conceals, conveys or wastes marital assets in anticipation of a divorce ․ [C]ourts have traditionally recognized dissipation in the following paradigmatic contexts:  gambling, support of a paramour, or the transfer of an asset to a third party for little or no consideration.”  (Citation omitted;  emphasis added.)

This court finds that the testimony of the plaintiff and the daughter was credible, and that the more credible evidence establishes that the division of personal property, including the jewelry, was voluntary, open and above board in all respects, with the full knowledge and cooperation of the defendant.   Although the transfer of the assets was not for monetary consideration, the court finds that the plaintiff did not act alone in making these decisions;  rather, the defendant was an active participant in the process.   Dissipation occurs when one of the spouses acts without the knowledge or consent of the other.   Accordingly, based on the preponderance of the evidence, the plaintiff did not dissipate the marital assets.   Moreover, the court has no jurisdiction to order non-parties such as the adult children of this marriage to return personal property that was given to them by their parents approximately three years ago and has been in their exclusive possession since then.   The court cannot order the sale of the gifts to the children as suggested by the defendant.   However, the property distributed as between the parties remains subject to the court's jurisdiction pursuant to General Statutes § 46b–81.   The property in the defendant's Connecticut home as well as the property in the plaintiff's Maryland apartment may be assigned to either the husband or wife.   Additionally, it is apparent that the personal property in the plaintiff's possession, which includes many heirlooms, including rare books, has more value than the $7,500 claimed by the plaintiff.   The court finds the plaintiff has possession of a disproportionate share of the parties' personal property.   The court has taken this into consideration in the fashioning of its orders, including alimony.

ORDERS

Based on the foregoing, the court orders the following:

1. The marriage of the parties is dissolved on the basis of an irretrievable breakdown.

2. Alimony:  The defendant will pay the plaintiff $1,050 a month as alimony until the earliest of (1) remarriage of the plaintiff;  (2) death of either party;  or (3) the plaintiff's cohabitation pursuant to General Statutes § 46b–86(b).  The plaintiff shall pay one dollar per year alimony until the earliest of (1) remarriage of the defendant;  (2) death of either party;  or (3) the defendant's cohabitation pursuant to General Statutes § 46b–86(b).

3. Marital Residence:  In the event of a sale of the marital residence within three (3) years from the date of judgment, any and all net proceeds shall be divided equally after the payment of all customary costs attendant to the sale, including, but not limited to, any and all outstanding real property taxes due and owing.   Net proceeds shall be computed on a current basis (as if the mortgage and taxes were current).   After three years the plaintiff shall have no right to any net proceeds upon sale of the property.   The plaintiff shall have no responsibility for any deficiency in the property upon its sale or foreclosure.

The plaintiff shall execute a Quitclaim Deed giving title to the defendant and execute any and all additional papers necessary for the sale or transfer.

The court shall retain continuing jurisdiction over the sale/transfer of the real property for the purpose of effectuating the provisions of the judgment regarding same.

4. The parties shall be individually responsible for their own health insurance.

5. Post-secondary education.   The court shall reserve jurisdiction under General Statutes § 46b–56c and make orders with respect to the educational expenses for Anne.¹¹

6. The plaintiff shall be the sole owner of the Lincoln Aviator.   The plaintiff shall be responsible for all costs and expenses associated with said vehicle, and shall indemnify and hold the defendant harmless with respect thereto.

7. Remaining personal property.   The parties shall be the sole owners of the personal property in their possession provided, however, the parties shall each retain their own clothing, jewelry and other personal effects, including items he or she may have received as gifts from the other party.

8. So long as any party has alimony to the other, the parties shall annually exchange their W–2s, 1099s, K–1s and returns by February 15 of each year, and shall provide each other with their federal tax returns within five days of filing.

9. Each party shall be responsible for their respective attorneys fees, for to order otherwise would undermine these financial orders.

10. Liabilities. Each party shall be responsible for the remaining liabilities listed on their respective financial affidavits and will indemnify and hold the other harmless.   Provided however, each party shall reimburse the other for 50 percent of every dollar the party is required to pay as a guarantor of the children's student loans listed on the parties' financial affidavits.

11. Each party is ordered to sign whatever documents are necessary, and are presented to them, by the other party to effectuate these orders.

12. The plaintiff's maiden name of Ballantine is restored.   These orders are effective immediately.

It is so ordered.

HARRY E. CALMAR, JUDGE

FOOTNOTES

FN1. The plaintiff suffered a severe ruptured abdominal aneurysm in May 2009, and was hospitalized on an emergency basis for an extended period of time..  FN1. The plaintiff suffered a severe ruptured abdominal aneurysm in May 2009, and was hospitalized on an emergency basis for an extended period of time.

FN2. The plaintiff's financial affidavit reflected gross income of $375 per week from the nursery alone.   Her testimony at trial presented a more complete picture of her earnings..  FN2. The plaintiff's financial affidavit reflected gross income of $375 per week from the nursery alone.   Her testimony at trial presented a more complete picture of her earnings.

FN3. The trust established by his father also pays the real estate taxes and common charges on a Florida condominium owned by the trust, but occupied exclusively by the defendant..  FN3. The trust established by his father also pays the real estate taxes and common charges on a Florida condominium owned by the trust, but occupied exclusively by the defendant.

FN4. As of April 2012, the payment withheld was $1,823.90 and the balance owed was $19,842.   Effective March 2013 the full regular monthly payment of $1,823.90 will resume..  FN4. As of April 2012, the payment withheld was $1,823.90 and the balance owed was $19,842.   Effective March 2013 the full regular monthly payment of $1,823.90 will resume.

FN5. The financial affidavit filed by the defendant at trial (Exh. 1) did not include any income from employment.   Rather it noted in the occupation section that he was “retired.”   The defendant's revised financial affidavit submitted post-trial pursuant to a court order, but dated March 15, 2012, reflects his employment with the WPA in New York City with a net weekly wage of $243.   The defendant used a thirteen-week average because he had only recently been hired..  FN5. The financial affidavit filed by the defendant at trial (Exh. 1) did not include any income from employment.   Rather it noted in the occupation section that he was “retired.”   The defendant's revised financial affidavit submitted post-trial pursuant to a court order, but dated March 15, 2012, reflects his employment with the WPA in New York City with a net weekly wage of $243.   The defendant used a thirteen-week average because he had only recently been hired.

FN6. The plaintiff's exhibit 1 is a list of the items, many family heirlooms, shipped in the pod and currently in her possession in Maryland and an inventory of jewelry given to the children in May 2009 and no longer in her possession.   Items identified “not in POD” were not in her possession and items in bold are her family heirlooms..  FN6. The plaintiff's exhibit 1 is a list of the items, many family heirlooms, shipped in the pod and currently in her possession in Maryland and an inventory of jewelry given to the children in May 2009 and no longer in her possession.   Items identified “not in POD” were not in her possession and items in bold are her family heirlooms.

FN7. Both parties in a dissolution proceeding are required to itemize all of their assets in a financial affidavit and to provide the court with the approximate value of each asset.  Practice Book § 25–30;  see also Bornemann v. Bornemann, 245 Conn. 508, 535–36, 752 A.2d 978 (1998)..  FN7. Both parties in a dissolution proceeding are required to itemize all of their assets in a financial affidavit and to provide the court with the approximate value of each asset.  Practice Book § 25–30;  see also Bornemann v. Bornemann, 245 Conn. 508, 535–36, 752 A.2d 978 (1998).

FN8. “When faced with the constraints of incomplete information, a court cannot be faulted for fashioning an award as equitably as possible under the circumstances.”  Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005)..  FN8. “When faced with the constraints of incomplete information, a court cannot be faulted for fashioning an award as equitably as possible under the circumstances.”  Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005).

FN9. The complaint was signed on May 20, 2009, served on May 21, 2009, and had a return date of June 16, 2009..  FN9. The complaint was signed on May 20, 2009, served on May 21, 2009, and had a return date of June 16, 2009.

FN10. The defendant is estranged from all three of his children.   He indicated he has extended an open invitation to reunite with his daughters..  FN10. The defendant is estranged from all three of his children.   He indicated he has extended an open invitation to reunite with his daughters.

FN11. The court finds it is more likely than not that the parents would have continued to provide support to the child for higher education or private occupational school if the family were intact.  General Statutes § 46b–56c(c)..  FN11. The court finds it is more likely than not that the parents would have continued to provide support to the child for higher education or private occupational school if the family were intact.  General Statutes § 46b–56c(c).

Calmar, Harry E., J.