Rita L. Kelly v. William J. Kelly, Jr. (2013)

MEMORANDUM OF DECISION

This matter was tried by the court on May 21, 2013.   The issues before the court are the distribution of the personal property and what the plaintiff should receive by way of alimony.¹  Following the conclusion of the evidence, it was decided and agreed that in order to resolve some of the financial matters, the parties would explore a refinance of the marital home and report back to the court on June 3, 2013.   On June 3, 2013, counsel appeared before the court and reported that a refinance of the marital home will not be taking place and the court should therefore proceed with issuing its decision.

The court has considered all the credible evidence presented to it and carefully considered the respective criteria for orders of alimony, property division and payment of counsel fees.

The court finds the plaintiff, whose birth name was Rita Galkowski, and the defendant were married on July 26, 1981 in Portsmouth, Rhode Island.   The plaintiff continuously resided in the state of Connecticut for more than one year prior to the filing of this action.   The court therefore has jurisdiction over this action to enter a dissolution of marriage.

The plaintiff and defendant have no minor children and have not been the recipients of state or municipal assistance.

The parties met in August of 1979 while they were both working in the food and beverage industry and married in July of 1981.   At the time of their marriage, the plaintiff wife was approximately 27 years of age and the defendant husband was approximately 21 years of age.   Shortly after their marriage, the defendant joined the navy.   The plaintiff followed the defendant at all times throughout his naval career except for when he was deployed.   Two children were born to the parties, a son and a daughter, both of whom are adults at the present time.   The plaintiff attempted to obtain a college education during the course of the marriage.   However, due to the child rearing responsibilities, which fell upon her when the defendant was deployed, she never completed her education.

The defendant's absences when deployed put a strain on their marriage.   In addition, the parties have also been plagued in more recent years with their son's alcoholism and their daughter's instability issues.   The latter of which resulted in the Juvenile Court awarding the parties custody of their daughter's two children in 2005.

Presently, the plaintiff is 59 years old and in generally good health.   She does suffer from atrial fibrillation and was wearing a heart monitor at the time of trial.   She has also been in counseling for the past five years in order to help her cope with the stress of her sister's death and the stress resulting from the breakdown of her marriage as well as the difficulties of raising her two grandchildren.   She is presently attending the University of Connecticut at Avery Point and is five credits away from receiving a Bachelor's Degree in American Studies.   She is presently unemployed and has no income other than the $120 weekly stipend that she receives from the State of Connecticut for the benefit of the parties' grandchildren.   There was no evidence to indicate that any of the plaintiff's maladies would prevent her from working.   To the contrary, she is eager to graduate and establish herself in a profession though she has concerns that it may take time to secure employment in this economy.

The defendant is 53 years old and in good health.   He retired from the navy six years ago and is presently employed with the federal government at the Submarine Learning Center as the Director of Technology Services earning a gross annual salary of approximately $105,000.   He has a net weekly wage of $1,580.10.   He retired from the navy with 24 years of service and currently receives a gross pension of $640 per week.   At the time of his retirement he did not elect a survivor benefit.   He therefore secured life insurance for the benefit of the plaintiff and currently has two policies naming her as primary beneficiary with a total face amount of $500,000.   His naval retirement benefits also provide the parties with lifetime health insurance.   Upon retiring from the navy, he obtained his Master's Degree.

The parties jointly own their marital home and have stipulated that the value of it is $120,000.   The first mortgage is approximately $42,000 and will be paid off in seven years.   There is also a home equity line of credit (HELOC) in the amount of $73,000 with an outstanding balance of approximately $43,000.

The plaintiff drives a 2006 BMW 530, which the defendant purchased as a gift to her and is in his name solely.   The defendant drives a 2004 Ford Ranger.   There is an outstanding loan on the plaintiff's vehicle while the defendant's is owned outright.   In addition to the car loan, the parties each have credit card and student loan liabilities.

With regard to assets, the parties own various stocks with a total approximate value of $15,000–$16,000 as indicated on their financial affidavits.   In addition, the defendant has three retirement plans.   One is a thrift savings plan with a present value of $114,714.   The other two are defined benefit plans.   His naval pension is presently in pay status and he receives a gross weekly amount of $640 and nets $431 after taxes and a furlough deduction.   The third is his pension through the Federal Employee Retirement Service (FERS) in which he is vested, but it is not in pay status.   His FERS plan has a current value of $511 per month.   At age 61 and 66, it will provide him with a monthly benefit of $1,388 and $1,944 respectively.

The defendant will be receiving an inheritance from his father's estate in the approximate amount of $75,000.   There are four beneficiaries of the estate and the inventory is valued at approximately $300,000.   His father passed away earlier this year.   The parties dispute the nature of the plaintiff's relationship with Mr. Kelly's father and therefore disagree as to her percentage share of the expected inheritance.   The testimony established that both parties were estranged from Mr. Kelly's father for a period of time as they did not approve of him marrying a woman twenty some odd years his junior.   The plaintiff did not attend her father-in-law's funeral service with the defendant.

The marriage has broken down irretrievably.   The plaintiff testified that her husband became so involved with the grandchildren's little league activities that it took him away from the home and their marriage suffered.   The defendant has been involved in the league for the past five to six years and has served as the league President for the past two years.   The parties initially attempted counseling with a therapist whom the defendant refused to see after the first session because he felt it was the plaintiff's issue.   He did later acquiesce to see a priest, but the plaintiff then refused to continue counseling with the priest when the priest suggested that she attend the ballgames to see her husband.   The plaintiff also believes that the defendant engaged in an inappropriate relationship with another married woman, but does not accuse him of having an affair.   The defendant denies any extramarital relations and testified that the marriage was always volatile due to his career absences and in more recent years as a result of the time he devoted to the grandchildren's little league.

It is clear to the court that the defendant's absences were a contributing factor to the breakdown of the marriage, but the couple also had significant stressors in their life as a result of having to cope with their son's alcoholism and the raising of their daughter's children at this stage in their lives.   The court does not find one party or the other to be any more responsible for the breakdown of the marriage.

In light of all the evidence, it is hereby ORDERED:

1. Dissolution

The marriage of the parties is dissolved on the grounds of irretrievable breakdown.   The parties are declared to be single and unmarried.

2. Alimony

a. The husband shall pay to the wife the sum of $650 per week as periodic alimony.

b. Alimony shall be modifiable and shall terminate upon the death of either party, the wife's remarriage or her co-habitation with an unrelated person pursuant to Gen.Stat. § 46b–86b.

c. Alimony is deductible by the husband for income tax purposes and includable in the wife's income for income tax purposes.

3. Real Estate

a. The husband shall quitclaim to the wife all of his right, title and interest in the marital home located at 52 Round Hill Road, Groton, Connecticut.   The wife shall be solely responsible for all costs associated therewith including the first mortgage and the HELOC and shall indemnify and hold the husband harmless therefrom.

b. The wife shall be solely entitled to all equity in the property free and clear of any claim by the husband.

c. The husband shall not be entitled to draw any further amounts on the HELOC without the wife's written consent.

d. The parties shall cooperate with one another in order to transfer the utility services and bills associated with the marital home into accounts solely in the plaintiff's name.

4. Life Insurance

a. The husband shall continue to name the wife as irrevocable beneficiary on his existing CUNA life insurance policy with a face amount of $400,000 for so long as he has an alimony obligation to her.   He may reduce the benefit amount to the wife by $25,000 each year, but in no instance shall he maintain less than $100,000 worth of life insurance coverage unless the alimony obligation is terminated.

b. The husband shall furnish to the wife on July 1st of each year proof that he is insured in the specified amount together with proof of the beneficiary designation.

5. Medical Insurance

Each party shall be solely liable for his or her own medical insurance and unreimbursed medical expenses.

6. Personal Property

a. The wife shall retain sole ownership of the Apple stock listed on the parties' financial affidavits and the husband shall retain sole ownership of all other stocks and each shall bear the capital gains tax, if any, associated with the sale of said stocks.

b. The husband shall retain ownership of the kayaks, the trailer and the sound and lighting equipment.

c. By way of a property settlement, the wife shall receive the sum of $25,000 from the husband's share of his vested property interest in his father's estate valued at $75,000.   If the husband's distribution of his share of the estate proceeds is not accomplished via a wire transfer, he shall immediately upon receipt of the funds representing his share of the estate deposit said funds into his personal bank account and tender said $25,000 to the wife within fourteen days (14) days of the funds clearing his account.

d. With regard to all other personal property, each shall keep free and clear of any claim by the other the personal property they now have in their possession.

7. Retirement Assets/Pension

a. The plaintiff, Rita Kelly, the former spouse of William J. Kelly, Jr., is awarded 50% of William J. Kelly, Jr.'s military retired pay.   Said military retired pay is presently in pay status.   Pursuant to the Uniformed Services Former Spouses' Protection Act, the plaintiff must submit a certified copy of this judgment along with a completed application form to the Defense Finance and Accounting Service (DFAS) in order to begin receiving her direct payments.   Until such time as she receives her payments directly, the defendant shall tender to the plaintiff 50% of his net disposable retired pay within five days of receiving the same.

b. The plaintiff, Rita Kelly, the former spouse of William J. Kelly Jr., is awarded 50% of William J. Kelly, Jr.'s Federal Government Thrift Savings Plan valued as of the date of dissolution together with any gains or losses thereon.   Said transfer shall be a non-taxable event and shall be effectuated via a Court Order Acceptable for Processing.

c. The plaintiff, Rita Kelly, the former spouse of William J. Kelly, Jr., shall be entitled to one-half of the marital portion of the defendant, William J. Kelly, Jr.'s, gross pension under the Federal Employee Retirement System (FERS) together with any cost of living adjustments.   It is contemplated that the marital portion, or her coverture share of the defendant's FERS retirement, shall be calculated as follows:

Benefit amount x (number of months married while earning the pension) x 50%

Total number of months earning the pension

To the extent the defendant must elect a former spouse survivor annuitant at the time of his retirement to effectuate this order, he must do so, provided the plan and the law so allow.

d. The parties shall share equally in any expense necessary to effectuate the above transfers including preparation of any COAP. Further, the defendant shall assist the plaintiff and cooperate in obtaining any forms necessary to effectuate said transfers.

8. Bank Accounts

The parties shall keep their respective bank accounts free and clear of any claim by the other.

9. Motor Vehicles

a. The husband shall sign over to the wife all right, title and interest in the 2006 BMW 530.   She shall hold the husband harmless and indemnify him from all costs associated therewith including property taxes, insurance and registration for this vehicle.

b. The husband shall retain all right, title and interest in the 2004 Ford Ranger.   He shall hold the wife harmless and indemnify her from all costs associated therewith including property taxes, insurance and registration for this vehicle.

c. The parties shall transfer title to the vehicles as ordered above within thirty days from the date of judgment.

10. Debts

a. The parties shall each be liable for the debts listed on their respective financial affidavits and hold the other harmless and indemnified.

b. The parties shall cooperate with one another to remove their respective names from the credit card accounts of the other.   Specifically, the defendant shall take such steps as are necessary to remove the plaintiff from any liability or association with the VISA credit card account ending in 208.

11. Taxes

a. To the extent the parties are still entitled to a refund from the 2012 state or federal income tax filings, they shall each share equally in the refund(s).

b. In the event a tax audit for the year 2012 or any year prior thereto results in a tax liability, the husband shall be solely responsible for said sum(s) and shall indemnify and hold the wife harmless therefrom.

12. Attorneys Fees

The husband and wife shall each be responsible for their own counsel fees in connection with this action.

13. Miscellaneous

The husband is ordered to pay to the wife's counsel the sum of $400 for the appraisal fee as previously ordered by the court (Jongbloed, J.).   Said sum shall be paid on or before June 30, 2013.

14. Non-dischargeability

The payments and obligations referenced in these orders are intended to be in the nature of spousal support within the meaning of the United States Bankruptcy Code and shall not be discharged in bankruptcy.

Connors, J.

FOOTNOTES

FN1. The parties have stipulated that the defendant will quitclaim the marital home to the plaintiff and each have provided for weekly alimony payments with the defendant proposing the payment of other expenses to be classified as alimony as well..  FN1. The parties have stipulated that the defendant will quitclaim the marital home to the plaintiff and each have provided for weekly alimony payments with the defendant proposing the payment of other expenses to be classified as alimony as well.

Connors, Susan A., J.