Donna Woviotis v. Marc Woviotis (2013)

MEMORANDUM OF DECISION

The plaintiff, who was a resident of Pawcatuck, Connecticut, initiated this action for dissolution of marriage with a complaint that was returned to the court on March 6, 2012.   At the time, the defendant was a resident of Pawcatuck, Connecticut.

The court finds that it has jurisdiction and that all statutory stays have expired.

A limited contested trial was held before the undersigned on June 5, 2013.   Both parties appeared at trial 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 that the following facts were proven by a preponderance of the evidence.

1. The plaintiff and the defendant, whose prior name was Vislosky, were married on July 12, 1992 in New London, Connecticut.

2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.

3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.

4. There are four children and three children under the age of 23, born to the wife since the date of the marriage;  namely, Alexa born June 26, 2000, Zachary born September 29, 1995 and Nicholas born September 22, 1992.   Nicholas has two more years of college to complete, Zachary is a senior in high school and Alexa is in middle school.   No other children have been born to the wife since the date of the marriage.

5. Neither party has received assistance from any State or local agency.

6. At the time of the marriage, the parties had few assets and most of the marital estate was accumulated during the course of the marriage.

7. During much of the marriage, the husband drank to excess, even after having been told by both his wife and his son.   For the past seven years, he has been under-employed.   Notwithstanding the fact that he is healthy, well educated with an MBA, very well spoken, he claims to be making little or no money as a self-employed contractor.   The wife has worked either full-time or part-time throughout the course of the marriage in addition to having the primary responsibilities for raising the children.   Both parents love their children and our very supportive of them.   The cause of the dissolution is found to be primarily his.

8. The parties stipulate that the court may retain continuing jurisdiction regarding post-majority educational support pursuant to General Statutes § 46b–56c.

9. The parties continue to live under the same roof and have managed to act civilly with one another and with their children, two of whom are under the age of 18 and continue to reside in the marital residence.

10. There presently exists, as marital assets, the marital home which the plaintiff claims to be worth $355,000 and the defendant claims to be worth $430,000 (with a balance due on the mortgage of $148,000, taxes due in July in the amount of $5,000, a CL & P lien in the approximate amount of $13,000 and a medical bill lien in the approximate amount of $6,000).   There is also the wife's vehicle with negative equity of $5,000, various furnishings and personalty, the husband's Honda Ridgeline with $5,000 of equity, and the husband's business (including tools all of his contracting trade and accounts receivable of the husband's business in the approximate amount of $12,000).

11. The debt of the parties, not already listed above, includes the husband's unnamed credit cards in the amount of $9,000, the husband's Home Depot credit card in the amount of $6,000, the husband's student loan in the amount of $72,000, the wife's student loan in the amount of $100,000, Dr. Steinberg's bill in the amount of $2,000 and the wife's credit cards in the amount of $600.

12. The wife is 58 years old and the husband is 50 years old and both are in good health, notwithstanding the fact that the husband claims to suffer from COPD and a knee injury which does not appear to interfere with his employment.

13. To their credit, the parties agreed to a large number of significant issues.   They agreed that there should be joint custody with primary residence in the mother and reasonable rights of visitation in the father at the children's discretion, given their mature ages.   They agreed that the mother should retain the marital residence, primarily to provide for a stable home for the children until such time as various triggers occur, particularly the youngest child having graduated from high school.   The parties agreed that they should pay their own student loans and the debts listed on their respective financial affidavits.   They agreed that, if possible, the marital home debt should be refinanced and that they would cooperate with one another to effectuate that refinance and that the father would receive a portion of the home's equity upon certain triggering events.   They agreed that the court should retain continuing jurisdiction regarding post-majority educational support.   They agreed that each should retain their own bank accounts and vehicles.   They agreed that the husband would vacate the marital residence within 30 days and be permitted to complete the renovations and repairs himself.   They agreed that the wife would maintain medical insurance for herself and for the minor children as available through her employer.   The husband was not seeking an order of alimony.

14. The parties disagreed about the following issues:

a.  Whether the wife should receive one dollar per year alimony;

b. whether the husband should receive some portion of the wife's pension;

c. the value of the marital residence and what portion of the equity should go to each party;

d. whether the husband should return various items of personalty to the wife which he had removed from the marital residence;

e.  The husband's earning capacity and the amount of child support.

15. The court finds that the husband has an earning capacity of $75,000 per year.   Based on his good health, educational background including an MBA from a fine institution, strong family and business contacts in this community, restaurant and health care management experience and business experience, he clearly should be earning at least as much as his wife.   Based on that earning capacity, the cause of the dissolution, the length of the marriage and contributions to the marital estate of the wife, the wife is entitled to alimony in the amount of one dollar per year modifiable as to amount.   The alimony shall terminate upon the earlier of the death of either party, the wife's remarriage or cohabitation or 10 years, whichever comes first.   The husband is entitled to earn the sum of $75,000 per year as a safe harbor before such earnings are to be considered a substantial change in circumstances.

16. The wife should retain her unvested pension in its entirety.   While there is some authority for the proposition that “property” has a widely expansive interpretation, this pension, not yet vested, and earned solely through her efforts while she was working full-time and was primarily responsible for the household and children's needs should not be divided under these circumstances.

17. Two experts testified as to the value of the marital residence.   The defendant's expert testified that the home was worth $438,000.   Nonetheless, he had never seen the interior which turned out to be a significant factor.   Much of the house is in need of repair or completion including an addition off the rear of the house, painting, siding, interior trim, slate in the foyer and on the front porch, completion of the master bath and updating of the kitchen.   The plaintiff's expert testified that the home was worth $355,000.   The court finds this appraisal more persuasive in that this appraiser conducted an interior inspection and specifically referenced these deficiencies.   The court finds the value of the residence to be $355,000.

18. There is presently due to the mortgagee $148,000.   Taxes will be due and payable next month in the approximate amount of $5,000.   There are two liens on the house payable to CL & P in the amount of $13,000 and a judgment in the amount of $6,000 for total debt in the amount of $172,000 for net equity of $183,000.   It is undisputed however that there are necessary repairs and completions of work required of an uncertain amount.   The husband, a home improvement contractor, claims that he can complete these improvements within 30 days utilizing materials already at the house and money owed to him from a customer for whatever materials he needs to purchase.   Notwithstanding the fact that he has had years to complete these tasks, the prospect of having everything completed within 30 days by the homeowner himself is too tempting to resist.   He should be given that chance.   The husband will be entitled to 40% and the wife will be entitled to 60% of the equity in the marital residence.   The husband's share shall be $73,200 plus whatever sum is arrived at from paragraph 19.

19. The husband is ordered to vacate the marital premises within 30 days.   He shall be permitted during that time and for 30 days thereafter to complete whatever renovations and repairs he deems necessary.   He may use whatever materials are already stored at the marital residence.   He shall be entitled to a credit, added to his equity in the marital residence of the new materials which he must purchase (provided he supplies a receipt to his wife for each such item) and $30 per hour for his labor (provided he supplies a weekly log to his wife of the hours worked and the tasks accomplished).

20. Surprisingly, the husband testified that he has a business acquaintance or friend who is willing to advance sufficient money to permit a total refinance of the home mortgage.   This too is too tempting to resist.   He should be given that chance.

LEGAL DISCUSSION

“The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”   Gervais v. Gervais, 91 Conn.App. 840, 841, cert. denied, 276 Conn. 919 (2005).

PROPERTY DISTRIBUTION

General Statutes § 46b–81(a) provides in relevant part:  “At the time of ․ dissolving a marriage ․ the Superior Court may assign to either the husband or wife all or any part of the estate of the other.   The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”   The court in Kaczynski v. Kaczynski, 124 Conn.App. 204 (2010), ruled that § 46b–81(a) permits the farthest reaches from an equal division as is possible, allowing the court to assign to either the husband or wife all or any part of the estate of the other ․ On the basis of the plain language of § 46b–81, there is no presumption in Connecticut that marital property should be divided equally prior to applying the statutory criteria.

Connecticut General Statutes § 46b–81 states:

In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

The court in Lopiano v. Lopiano, 247 Conn. 356, 363–64 (1998), held:

The distribution of assets in a dissolution action is governed by § 46b–81 which provides in pertinent part that a trial court may “assign to either the husband or the wife all or any part of the estate of the other ․ In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party ․ shall consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”  ․ This approach to property division is commonly referred to as an “all-property” equitable distribution scheme.   See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01[2][a][v], p. 37–19.  [Section 46b–81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power.   A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series:  Family Law and Practice with Forms (1991) § 27.1, pp. 398–400.”  (Emphasis in original.)   Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).   In fact, the court has the authority to assign the debts and liabilities and to order one party to assume the joint liabilities of both parties.  Bento v. Bento, 125 Conn.App. 229, 235 (2010).

The court in Krafick v. Krafick, 234 Conn. 783 (1995), held that the purpose of § 46b–81 was “to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute—directly and indirectly, financially and nonfinancially—the fruits of which are distributable at divorce.”  Id., 797–98.  Ranfone v. Ranfone, 103 Conn.App. 243, 250–51 (2007).

The court in Picton v. Picton, 111 Conn.App. 143 (2008), held that “an equitable distribution of property should take into consideration [each spouse's] contributions to the marriage, including homemaking activities and primary caretaking responsibilities” and that “a determination of each spouse's contribution within the meaning of ․ § 46b–81 includes nonmonetary as well as monetary contributions.”  Id., 153.

“C.G.S § 46b–81 applies only to presently existing property interests, not ‘mere expectancies.’  Bartlett v. Bartlett, 220 Conn. 372, 380–81.   An expectancy is only ‘the bare hope of succession to the property of another—such as may be entertained by an heir apparent.’  Krause v. Krause, 174 Conn. 361, 365 (1978).  ‘The term expectancy describes the interest of a person who merely foresees that he might receive a future beneficence ․ [T]he defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence.’  (Citations omitted;  emphasis in original.)  In re Marriage of Brown, 15 Cal.3d 838, 844–45.”  Krafick v. Krafick, 234 Conn. 783, 797 (1995).

“A court may accept or reject such evaluations in whole or in part and ascribe its own valuations to real estate ․ The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder.  Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 430–31 (1987).”  Martin v. Martin, 99 Conn.App. 145, 150 (2007).

“Trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings ․ The trial court is granted the authority, pursuant to section 46b–81, to order the sale of the marital home without any act by either the husband or the wife, when in the judgment of the court is the proper mode to carry the decree into effect.”  Martin v. Martin, 99 Conn.App. 145, 154 (2007).

ALIMONY

Connecticut General Statutes § 46b–82 states:

At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b–81.   The order may direct that security be given therefore on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.

EARNING CAPACITY

“Generally, one's earning capacity is not synonymous with actual earned income.   Our Supreme Court has stated that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health” [internal quotation marks omitted], rev'd on other grounds, 280 Conn. 764, 911 A.2d 1077, after remand, 104 Conn.App. 482, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008);  see also Hart v. Hart, 19 Conn.App. 91, 95, 561 A.2d 151 (“[i]t is particularly appropriate to base a financial award on earning capacity where there is evidence that the payor has voluntarily quit or avoided obtaining employment in his field”), cert. denied, 212 Conn. 813, 565 A.2d 535 (1989).  Tanzman v. Meurer, 128 Conn.App. 405, 412–13 (2011).

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income ․ Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007), Eliah v. Eliah, 99 Conn.App. 829, 833 (2007).  “It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations ․” Weinstein v. Weinstein, 280 Conn. 764, 772 (2007).   Moreover, “lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate.”   Carasso v. Carasso, 80 Conn.App. 299, 304 (2003), cert. denied, 267 Conn. 913 (2004).”  Milazzo–Panico v. Panico, 103 Conn.App. 464, 468 (2007).

ORDERS

The court orders the following:

1. The parties shall enjoy joint custody of the minor children with primary residence in the mother.   The father's visitation shall be liberal and reasonable as arranged between the children and the father.

2. The court finds the presumptive child support from the father per the Child Support Guidelines to be $221 per week for the two minor children and 43% of health care expenditures based on the wife's income and the husband's earning capacity found to be $75,000 per year.   The court orders the father to pay as child support for the two children the sum of $221 per week commencing upon his vacating the marital residence and the parties shall divide any unreimbursed medical, optical, ophthalmological, psychological, orthodontic, or dental expenses, or work related day care costs, 43% payable by the husband and 57% payable by the wife.   Once there is only one minor child, the father's child support, based on the guidelines, will be $169 plus 47% of any unreimbursed health care expenses.

3. The court orders the husband to pay periodic alimony to the wife in the amount of $1 per year.   Said alimony shall be taxable income to the recipient and shall reduce the gross income of the payor.   Said alimony will terminate upon the earlier of 10 years, the death of either, or the wife's co-habitation, remarriage or civil union.   It is modifiable as to amount only.

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

5. The wife shall maintain medical and dental coverage for the minor children as available through her employment at a reasonable expense.

6. The husband shall quit-claim to the wife the marital home and the wife shall use her best efforts to refinance the home mortgage in her own name forthwith.   Both parties shall cooperate with one another regarding any mortgage refinance program presently available, either through the court system, with the bank directly or with a private lender.   The husband may elect, at his discretion, to remain on the home mortgage or become obligated on any new home mortgage if he so desires in an effort to keep the home in the family.   If the lender requires, both parties will remain on the deed as owners.   The wife shall execute to the husband a mortgage note in the amount of $73,200 plus whatever sum is derived from the Findings of Fact, paragraph 19 above.   This mortgage note shall carry interest in the amount of 3% per year.   Said debt shall not be dischargeable in bankruptcy.   Upon the husband's vacating the marital residence, the wife shall be solely responsible for all costs, expenses, taxes and mortgages associated with said home and hold the husband harmless and indemnify him for any such expenses.

7. Said mortgage note shall become due and payable to the husband upon the earlier of the following conditions:  the wife's vacating the property as her primary residence, the youngest child obtaining the age of 18 or graduating high school (whichever is later), the sale of the property, the foreclosure of the property or mutual agreement of the parties.

8. The husband shall vacate the marital residence within 30 days.

9. The husband may elect to make any repairs or renovations to the marital residence pursuant to the Findings of Fact, paragraph 18 above.

10. The husband shall retain his Honda vehicle.   The wife shall retain her Mercedes Benz vehicle.

11. Each shall keep their own bank accounts.

12. The wife may retain her State of Connecticut pension.

13. Each party shall be entitled to one dependency tax exemption for the children when there is an even number of children.   When there are three eligible exemptions, the wife will take two in each odd year and the husband will take two in each even year.   When there is only one dependency exemption, the wife will take the odd year and the husband will take the even year.   The husband's taking any dependency exemptions is contingent upon his being current on his child support by December 31 of that year.

14. The husband will be responsible for his student loan, the Home Depot $6,000 credit card and the $9,000 credit card.   The wife will be responsible for her student loan and her credit cards in the amount of $600.   The Dr. Steinberg bill will be deemed a mutual debt and each party is equally responsible.   The outstanding mortgage balance, the medical bill judgments, the CL & P judgment and the July property taxes shall be deemed debts associated with the marital residence and shall be incorporated into any mortgage refinance.

15. The parties shall each retain the personal property in their possession, the court finding that whatever antiques and items of property the husband took from the marital residence during the dissolution were from his side of the family.

16. Each shall pay their own counsel fees.

17. The payments and obligations referenced in these orders are intended to be family support/maintenance payments within the meaning of sections 523(a)(5) and 523(a)(15) of the United States Bankruptcy Code and not dischargeable in bankruptcy.   Each party shall be solely responsible for all debts they have been ordered to pay and they shall hold harmless and indemnify the other thereon.

18. Dissolution may enter.

Shluger, J.

Shluger, Kenneth L., J.