Rachel J. Neborsky v. Thomas W. Neborsky (2012)

MEMORANDUM OF DECISION

This is an action commenced by the plaintiff wife by complaint dated January 16, 2012 and made returnable to this court on February 7, 2012 seeking a dissolution of marriage and other court orders.   The defendant husband appeared pro se.

On November 15, 2012, the matter was tried to the court.   Both the plaintiff and the defendant were present for the trial.   The plaintiff was represented by counsel and the defendant appeared pro se.   Testimony was received from the plaintiff and the defendant and exhibits were introduced by the plaintiff and the defendant.

From the testimony and evidence produced at the trial and after assessing the credibility of the witnesses, the court finds the following facts to have been proven.

The parties were intermarried on September 24, 1988 in Ashford, Connecticut.   The parties have two children, issue of the marriage, Travis, who is eighteen years old and Seth who is 13 years old.   There have been no other children born to the plaintiff since the date of the marriage.   The plaintiff has resided in this state for more than one year immediately prior to the date of the complaint.   Neither party is currently receiving any state, federal or local assistance.   The court finds that it has jurisdiction over the parties and the marriage.

The plaintiff is in good health and has been employed by J.C. Penney for the past twenty-three years.   She has completed her high school education and earns approximately $17.20 an hour working the second shift.   Her financial affidavit lists her as earning a gross amount of $868.85 and a net amount of $515.23.   Among her deductions as listed on her financial affidavit are two loans, a 401k payment and critical illness insurance.

The plaintiff needed dental work three or four years ago and in order to pay for the services, she took a part-time job at a donut shop.

The plaintiff testified that the marital problems began to develop approximately thirteen years ago when the husband became ill.   She testified that the parties had very bad communication and had fundamental differences regarding child rearing issues.   An incident occurred in October 2011 which resulted in a restraining order being issued against the defendant in favor of the plaintiff with the defendant being ordered out of the marital home.

The marital home in Ashford, Connecticut was purchased by the parties in 1992 and was recently appraised at $150,000.00 pursuant to plaintiff's exhibit # 3.   It is encumbered by a mortgage with an approximate balance of $77,000.00.

In April 2012, the plaintiff left the marital home and moved into a duplex where she currently resides with the parties' two children.   At the time she left, she took a portion of the personal property in said home, leaving the rest in the home and is not claiming any additional personal property.   Her new residence has a rent of approximately $775.00 a month.

Both the plaintiff and the defendant have submitted a financial affidavit to the court.

The defendant is a licensed HVAC Technician and works for the State of Connecticut at the University of Connecticut as an HVAC Technician.   He has held said employment for approximately two and one-half years and earns $23.52 an hour for a 35.50–hour work week excluding overtime.   While the defendant lists on his financial affidavit a gross income of $1,028.82 per week, it does not adequately reflect the overtime he receives.   The payroll statement of the defendant introduced as Plaintiff's exhibit # 7, reveals that for the period of January 1, 2012 to September 20, 2012, the defendant received a total income from his employment of $53,323.06 representing his regular earnings, straight overtime and time and one-half overtime.   With the overtime, his weekly gross income is approximately $1,422.00 for said period.

In 1999, the defendant was diagnosed with a serious illness but is able to maintain employment.   He has held employment as an HVAC worker previous to his current employment.   The defendant also served in the United States Coast Guard but does not receive any retirement benefits based on his service.   The defendant testified that he borrowed from his mother in the past and also took money from his 401K account to be used for family bills.   The withdrawal resulted in the approximate amount of $3,473.48 owed to the Internal Revenue Service for the parties' 2010 joint tax return.

The Child Support Guidelines filed by the plaintiff on November 5, 2012 lists the defendant's gross income as $1,128.00 and has a child support order of $144.00 per week based on said income.   As such, the court hereby orders child support of $144.00 per week which is less than the guideline amount of $163.00 based on a gross income of $1,422.00 a week.   The court approves the deviation due to the division of assets and liabilities pursuant to this judgment.

The plaintiff's 401K with J.C. Penney as of September 30, 2012 lists a value of $66,261.61 minus a loan balance of $22,607.05 for a net value of $43,654.56.   It also reveals that as part of said amount is the value of 513.51 shares of J.C. Penny Stock valued at a price of $24.29 per share.   Since that time, the value of J.C. Penny Stock has decreased to approximately $17.00 as of November 26, 2012 and as such the value of said account has decreased by approximately $3,700.00.   The loans were taken out by the plaintiff for the purchase of her car and to assist her son.

Each party has submitted proposed orders to the court.   Neither party is seeking alimony even though the plaintiff has received pendente lite alimony.   The parties have also agreed as to the custody and visitation of the parties' minor child.

The court finds that the parties were married over twenty-four years ago.   Both parties made consistent and significant financial contributions to the martial family.   In addition, the court finds that both parties care for the child and have a working custody arrangement.   The proposed custody arrangement of the parties are found to be fair and equitable and in the best interest of the minor child.   The court does not find that either party was the sole cause of the breakdown of the marriage.   The parties' inability to communicate and their differences on issues such as finances and family matters all contributed to the breakdown of the marriage.   Both parties are hard workers and both are able to support themselves.

The parties' major assets are the marital home which has equity of approximately $73,000.00 and the 401K in the plaintiff's name with an approximate value of $40,000.00 after the deduction of the loans and the reduction in the stock value.   In addition, the plaintiff has a J.C. Penney pension with current monthly benefits of approximately $500.00 a month upon her retirement.   The defendant does not have a vested pension at the present time.   The defendant has earnings that exceed the plaintiff's earnings.

After taking into consideration the statutory criteria set forth in the Connecticut General Statues as well as the applicable case law and applying the same to the evidence, the court enters the following orders.

1. A decree is entered dissolving the marriage of the parties on the grounds of an irretrievable breakdown.

2. The parties shall have joint legal custody of the minor child, Seth Neborsky with the primary physical residence with the plaintiff.   The defendant shall have reasonable rights of visitation with the child as agreed by the parties.

3. The defendant shall make child support payments to the plaintiff for the benefit of the minor child in the amount of $144.00 per week, said sum being a deviation from the Connecticut child support guidelines as previously articulated.   The obligation of support and maintenance of the minor child shall be subject to the provisions of Connecticut General Statute Section 46b–84.   The child support obligation shall be secured by an immediate wage execution.   The plaintiff shall be responsible for 57% of unreimbursed medical expenses and the defendant shall be responsible for 43% of unreimbursed medical expenses.

4. The plaintiff and the defendant shall be solely responsible for their own medical insurance at their own expense and each party shall be entitled to any medical insurance benefits that may exist under COBRA at their own expense for the maximum period allowed by law.   The defendant shall maintain the minor child on his medical insurance for the benefit of the minor child as available through his place of employment for so long as the child is eligible to remain on his existing policy at a reasonable cost to the defendant.   If the defendant is no longer eligible to receive medical insurance for any reason, through his present employer, then he shall be required to obtain alternate medical insurance at a reasonable cost and maintain the minor child on said policy, for long as he is eligible to remain on any future policies.

5. The plaintiff shall convey to the defendant by quitclaim deed any and all interest she may have in the property located at 101 Laurel Lane, Ashford, Connecticut.   The defendant shall be solely responsible for the mortgage, real estate taxes and other costs associated with the property and shall indemnify the plaintiff harmless in regard to said property.

The court orders that the defendant pay the plaintiff the sum of $35,000.00 payable upon the first of the following events.

a. The sale of the premises.

b. The death of the defendant.

c. The refinance of the property.

d. November 27, 2014.

The defendant shall execute a mortgage deed and note with no interest in favor of the plaintiff to secure said debt, to be executed contemporaneously with the receipt of the quitclaim deed from the plaintiff.   The defendant shall further cause the plaintiff to be removed from the mortgage and note securing said property within six months of the date of the judgment or shall list the property for sale.   If the defendant is unable to refinance said property within six months from the date of this decree, then the defendant shall place the property for sale with a licensed real estate broker and market it upon terms as recommended by a realtor until it is sold.   Until the plaintiff's name has been removed from the mortgage, the defendant shall keep the mortgage payments current or shall immediately list the property for sale.   The court shall retain jurisdiction in regard to the terms of this section.

6. The plaintiff shall retain ownership of the First Niagara checking and savings accounts as listed on her financial affidavit free and clear of any interest of the defendant.

The plaintiff shall retain the sole ownership of her 401(k) account as listed on her financial affidavit, free and clear of any claim of the defendant.

The plaintiff shall retain ownership of her life insurance as listed on her financial affidavit free and clear of any interest of the defendant.

The defendant shall retain the sole ownership of the State of Connecticut Retirement Fund account as listed on his financial affidavit free and clear of any claim of the plaintiff.

The defendant shall retain ownership of the CSE checking and savings account as listed on his financial affidavit and the CSE Credit Union Account per exhibit # 8, free and clear of any interest of the plaintiff.

The defendant shall retain ownership of his State of Connecticut Life Insurance Policy as listed on his financial affidavit free and clear of any interest of the plaintiff.

7. The plaintiff shall assign one-half of the value of her J.C. Penney pension benefit as of the date of the judgment, to the defendant by way of a Qualified Domestic Relations Order, the cost of which shall be shared equally between the parties.   Both parties shall cooperate with this process.   The court will retain jurisdiction of the terms of the Qualified Domestic Relations Orders for enforcement purposes.

The defendant shall retain any retirement benefits pursuant to his employment with the State of Connecticut and the plaintiff shall have no claim to any interest in said retirement.

8. The plaintiff shall be solely responsible for the Prue Law Group, P.C. debt as listed on her financial affidavit and shall hold the defendant harmless therefrom.

The defendant shall be solely responsible for the debt due the Internal Revenue Service and any accrued interest and/or penalties as listed on his financial affidavit and shall hold the plaintiff harmless therefrom.

9. Each party shall retain possession of and are entitled to all household goods, furnishings and possession now under their possession and control.   During the trial, the defendant listed the following items on his exhibit A which are items that he asserts were missing from the former marital residence at 101 Laurel Lane, Ashford, CT. A Custom Wood stove with water jacket, 2 burner camp stove, wheel barrow, 2006 Honda CR70, two-ton chain fall, steel utility cart, gold wedding ring, two 1800s silver dollars, misc. tools, 1921 gold 2 and 1/2 dollar coin.   If the plaintiff or the defendant come across any of said items, they shall belong to the defendant and the plaintiff makes no claim to said items and will promptly inform the defendant if she finds said items.   The court hereby makes clear that it does not find that the plaintiff has said items in her control and has no knowledge as to their whereabouts and as such is not ordering that she is to transfer them to the plaintiff.   The court's intent is only that if the plaintiff does find said items, that they belong to the defendant and she is not to assert ownership of said items.

10. The plaintiff shall retain ownership of the 2010 Ford Focus automobile in her possession free and clear of any claims of the defendant.   The plaintiff shall assume and hold the defendant harmless from any outstanding loans that may exist on said automobile, including taxes and insurance.   The defendant shall retain ownership of the 1992 Chevy Caprice automobile and the 1995 Ford F150 automobile free and clear of any claims of the plaintiff.   The defendant shall assume and hold the plaintiff harmless from any outstanding loans that may exist on said automobiles, including taxes and insurance.

11. No alimony is awarded to either party.

12. The court shall have continuing jurisdiction to enter an educational support order pursuant to Connecticut General Statute Section 46b–56c.

13. Each party shall promptly execute all documents necessary to effectuate these orders.

Graziani, Judge of the Superior Court

Graziani, Edward C., J.