Bruce Korten v. Gail Korten (2013)

MEMORANDUM OF DECISION

This dissolution of marriage action was commenced by way of a complaint dated June 20, 2011.   The matter was tried to the court over the course of three days on December 11, 2012, May 22, 2013 and June 10, 2013.   The court heard testimony in this matter from both parties, the plaintiff's mother, Julie Korten, the plaintiff's brother, Brian Korten, the plaintiff's son, Michael Korten, the defendant's daughter, Lacey Hurlburt, as well as officer Mark Rubera.   The court has considered all of the testimony offered during the trial and its observation of the demeanor and attitude of the parties.   All of the exhibits have been carefully reviewed and considered.   After considering the statutory criteria set forth in C.G.S. § 46b–82 as to assignment of alimony;  C.G.S. § 46b–81 as to assignment of property and transfer of title;  C.G.S. § 46b–62 as to payment of attorneys fees;  as well as a review of the applicable case law, the court makes the following findings and enters the following orders:

1. The plaintiff and the defendant, whose birth name was Gail Gross, were intermarried on July 20, 2002 in Lebanon, Connecticut.

2. The plaintiff continuously resided in Connecticut for at least one year prior to the commencement of the action.

3. The court has jurisdiction over this matter and all statutory stays have expired.

4. There are no minor children issue of this marriage and the defendant is not currently pregnant.

5. Neither party has been the recipient of any form of public assistance.

6. The marriage has broken down irretrievably and there is no hope of reconciliation.

7. The parties met online while the defendant and her daughter were residing in Canada.

8. The defendant and her then 15–year–old daughter relocated to Lebanon, Connecticut.

9. No testimony was introduced regarding the plaintiff's age, but he appears to be young and in generally good health.   He underwent a hernia operation in 2012, but has no restrictions on his ability to work.

10. The plaintiff is presently employed as a dealer at Foxwoods casino.   He is considered Part Time Regular and is scheduled three, 8–hour shifts per week at $5.25 per hour plus tips.   He generally is scheduled Friday, Saturday and Sunday nights from 9:00 p.m. to 5:00 a.m. and averages $400 per week gross.   He can pick up additional shifts if they are available, but claims they are very hard to come by.

11. The defendant maintains that the plaintiff could possibly pick up more shifts if he went back to work in the Foxwoods' casinos, as opposed to the MGM casino, which is smaller, but he chooses to work at MGM to be closer to his girlfriend who also works there.

12. The plaintiff also works at Water's Edge Campground (“Campground”) 16 hours per week at the rate of $10 per hour.   He does general maintenance, lawn care, sets up for events and fixes equipment.

13. The Campground, which was previously owned by plaintiff's parents, is now owned by the plaintiff's brother, Brian Korten.   His brother acquired the Campground in 2011 by way of a gift from his parents who desired to keep its operation in the family.

14. Since April of 2012 the Campground has been loaning the plaintiff $350 per week.

15. As of June 10, 2013 the plaintiff owed the Campground $21,000.

16. Brian Korten anticipates that the loan from the Campground to the plaintiff will be paid back via a refinance of the parties' marital home postjudgment of the parties' dissolution of marriage.

17. The plaintiff's parents loaned him approximately $29,451 since the parties separated.   Some of the monies were used for attorneys fees as well as the mortgages on the marital home and other living expenses.   They,¹ too, expected to be repaid via a refinance of the parties' marital home.

18. Since separating in June of 2011 the plaintiff has been paying all of the household bills as well as the parties' credit card debts.   The defendant contributed to the marital home expenses up until the parties separated in June 2011.

19. The defendant seeks equity from the marital home, but does not seek to retain any ownership interest in the property as it is located adjacent to the Campground and is directly across a common driveway from plaintiff's brother's home.

20. At one point, both parties were employed by the Campground.   In September of 2007, the defendant quit her employment with the Campground after having an argument with the plaintiff's mother, who then owned the Campground.

21. In December of 2007, the plaintiff's employment with the Campground was terminated.   At that point in time he was earning $739 per week and was working approximately 60–65 hours per week as a salaried employee.  (Exhibit C.)

22. Following the plaintiff's termination of employment from the Campground, the parties were estranged from the plaintiff's family.

23. The plaintiff and his family reconciled once he separated from the defendant.

24. During the course of the marriage, the plaintiff obtained an associate's degree in Computer Networking from University of Phoenix on line.   This degree was fully funded by student loans which are in pay status.

25. The plaintiff has not sought employment in the computer networking field claiming that his associate's degree is essentially meaningless and he would need a more advanced degree, but cannot afford further schooling.

26. The defendant, who is 53 years of age, was employed in Canada as a personal care technician doing patient care in a hospital.   Her certification in this field allowed her to care for patients by taking their vital signs and tending to their personal care.   She earned approximately $14 Canadian dollars per hour.

27. The defendant's certification was not accepted in the United States.   She became a certified nurse assistant (“CNA”) in 2003.   As a CNA, she could still do personal patient care, but could not take vital signs.   She worked in this field for approximately two years earning $12–13 per hour and worked approximately 32 hours per week.

28. She left the nursing field to work at the Campground after the plaintiff's father took ill.   She was responsible for booking all of the reservations, shopping for the store and stocking its shelves.   She earned approximately $13 per hour and worked approximately 50 hours per week.

29. The defendant contends that the plaintiff's family made her “the Heavy” in the administration requiring her “to do anything that wasn't fun,” such as dealing with noise complaints, late checkouts and the like.

30. The plaintiff contends that the defendant, who at age 19 and 20 worked as a bouncer at a bar for a brief period of time, enjoyed her confrontational role;  though he did testify that she was more often than not very pleasant to the Campground customers.

31. There was conflicting testimony regarding the incident that led to the defendant's ultimate departure from the Campground employment.   However, it is clear that the argument between the defendant and her mother-in-law pertained to the defendant's confrontation and treatment of a Campground customer who was late in vacating a campsite.

32. Upon terminating her employment with the Campground, the defendant went to work at Foxwoods Casino as a security officer earning $10 per hour.   She worked at Foxwoods in various capacities and was earning $12 per hour working retail there when she was terminated for poor customer service in October of 2012.

33. She appealed this termination and claims to have prevailed at an unemployment compensation hearing.

34. She is pursuing a claim against Foxwoods for wrongful termination seeking damages primarily for medical expenses that she has incurred as a result of losing her health insurance benefits.

35. The defendant suffers from Lupus and Sjogren's Syndrome, both of which are autoimmune disorders triggered in part by stress and which cause her, among other symptoms, severe joint pain.   She is presently not receiving care and treatment due to the lack of health insurance.

36. In March of 2013, she was admitted to the emergency room at Backus Hospital and has an outstanding medical bill for $1,200.

37. According to her financial affidavit, her unpaid medical bills total $1,608.

38. There is no evidence that the defendant is medically unable to work.   To the contrary, she is actively seeking employment as a CNA and Personal Care Technician through Connecticut Works.

39. Presently, the defendant is not qualified to serve in either capacity.   She allowed her CNA license to lapse.   She claims that in order to restore it, she would have to take a one-year-long course to be re-certified.   She further testified that in order to be a Personal Care Technician, she would need to enroll in a two-year full-time program at the cost of $1,600 and then pass a state test.   She seeks to hold the plaintiff responsible for this expense.

40. She has been working doing hospice and home care earning between $11–13 per hour depending on the case.

41. The defendant has not sought employment at any restaurants or department stores claiming that they do not pay enough and she needs to be available if she receives a job through Connecticut Works.

42. The parties stipulated that the marital home located at 273 Leonard Bridge Road, Lebanon, Connecticut, a jointly owned property, has a fair market value of $210,000.  (Exhibit 7.)

43. The parties purchased the home from the plaintiff's parents for $172,000.   The plaintiff's parents gave them a gift of equity in the amount of $72,000 and held a mortgage for $100,000.   The plaintiff's parents also held a 10–year right of first refusal.   Both parties testified that the intention was that in the event of a divorce, the plaintiff's parents would be able to buy back the home at its then present market value less the $72,000 gift of equity.   The right of first refusal expired on November 1, 2012.  (Exhibit 4.)

44. In 2003, the parties refinanced the property with Citi Mortgage and paid off the mortgage held by the plaintiff's parents.

45. There is currently a first mortgage and a home equity line of credit (HELOC) secured by the marital home.   The combined outstanding principal balances total approximately $181,623.47.

46. The parties own no other real property.

47. The plaintiff had a life insurance policy with a cash value of approximately $16,000, which he liquidated during the proceedings in order to pay bills.  (Exhibit 3.)

48. The defendant does not have a life insurance policy.

49. The plaintiff has a Merrill Lynch 401K with a balance of $10,741 and a Franklin Templeton Plan with a balance of $968.

50. The defendant has a Merrill Lynch 401K with a balance of $4,642.   In April of 2012, she took a $2,000 loan against said 401k.  (Exhibit J.) She also had a Canadian Retirement Account with a balance of $5,157 at the commencement of the trial.   The Canadian Retirement Account was premarital and was liquidated by the defendant at some point between the May 22, 2013 and June 10, 2013 trial dates.

51. The defendant withdrew $7,000 from the home equity line of credit at the initiation of these proceedings to pay her counsel fees.

52. The plaintiff has been paying the defendant periodic alimony in the weekly amount of $125 on a pendente lite basis since October 18, 2011.

53. The parties have stipulated that the defendant shall retain the 2007 Chevrolet Monte Carlo and the plaintiff shall retain the 1999 Chrysler Town and Country Van and 1995 Toyota T100 Pick Up Truck.

54. The parties have stipulated that the Monte Carlo has a value of $3,356 in good condition and a value of $2,481 in fair condition.  (Exhibit 1.)

55. The parties have stipulated that the Town and Country Van and the T100 Pick Up have values of $4,285 and $2,943 in good condition and values of $3,635 and $2,368 in fair condition, respectively.  (Exhibit 1.)

56. The defendant testified that her vehicle is in “quite good condition.”   She also believes the Town and Country Van should be considered good condition as it recently had a new engine installed.   The defendant admits that the Toyota has rust.   The plaintiff testified to the poor condition of both his vehicles.

57. The court finds that the Monte Carlo is in good condition and that the Town and Country Van and the Toyota Pick Up Truck are in fair condition.

58. The plaintiff has a 2000 Harley FXSTD motorcycle.   The parties have stipulated that it has a value of $10,000.

59. The defendant has a 2003 Ridley motorcycle.   The parties have stipulated that it has a value of $5,000.

60. The parties own a camper, which the plaintiff values at $1,100 and the defendant at $1,500.   The defendant proposes that it be sold with the proceeds being distributed on a 60/40 basis in her favor.

61. In June of 2010, the defendant's father passed away and she received a one-fifth share of his life insurance policy with a total death benefit of $8,000.  (Exhibit K.)

62. The plaintiff has three children from a prior marriage.

63. The plaintiff's child support obligation of $125 per week is taken directly out of his Foxwoods' casino paycheck.

64. From the period February, 18, 2004 through January 9, 2008, the parties spent $32,678.73 on attorneys fees and litigation expenses in connection with the plaintiff's custody matters with his ex-wife.  (Exhibit R.)

65. From June 12, 2003 through September 16, 2004, the plaintiff's portion of unreimbursed medical expenses for his minor children totaled $1,073.90.   (Exhibit S.)

66. At one point, the three children were residing with the parties.   At the defendant's insistence, each of the children were asked to leave the parties' home.

67. The plaintiff maintains that the marriage broke down because the parties were constantly arguing.   He cites the issues between the defendant and his family as the main contributing factor to the breakdown of the marriage.   He stated that the argument the defendant had with his mother, which led to the defendant's severance of employment from the Campground, was a substantial contributing factor to the breakdown of the marriage.   He further testified that once his employment with the Campground was terminated, the defendant essentially forbade him and his children from having any contact with his family.   The plaintiff finally came to the realization that the marriage was over at the end of 2010 when he excitedly told the defendant that his son, Stephen, whom the defendant had asked to leave the home, came to ask him to lunch.   The defendant responded that if the plaintiff had lunch with his son, it would be bad for their marriage.

68. The plaintiff further testified that the defendant was jealous of the relationship his children had with his ex-wife and that his children were disciplined differently than the defendant's daughter.

69. The defendant testified that she had a very good relationship with plaintiff's children and introduced 11 greetings cards that were given to her by them and her daughter for occasions such as her birthday, Mother's Day, Valentine's Day and the parties' anniversary demonstrating their affection for her (Exhibit V.) The cards do not contain dates and there was no testimony concerning the time frame in which they were received.

70. The plaintiff's son, Michael, testified.   He was clearly uncomfortable doing so and the court found him to be credible.

71. Michael Korten testified that “for the most part [he] got along with [the defendant].”   In 2008 he confided in her that he was gay.   He testified that it was very awkward when he and his brothers would return from visits with their mother because they were aware of the dislike of her.   The defendant did not support his relationship with his mother and told him that their mother had abandoned them, which he learned three years later was untrue.   Michael Korten substantiated plaintiff's claims that the defendant showed favoritism towards her daughter and testified that the defendant has anger issues and often went on rants.   On numerous occasions he witnessed the defendant attack the plaintiff without the plaintiff ever arguing back.   He corroborated the testimony that the plaintiff's children were asked to leave the parties' home by the defendant.

72. The defendant's daughter, Lacey Hurlburt, who was also clearly uncomfortable testifying, acknowledged that the plaintiff was always passive and would always walk away from an argument rather than respond, but denied that the defendant ever displayed anger or ranted more than the average person.

73. The court noted throughout the proceedings that the defendant had a very aggressive demeanor, except when testifying when she was almost timorous, and made negative facial expressions in regards to the proffered testimony.

74. The parties had no sexual relations with one another for several years prior to separating with the exception of one encounter that occurred on the defendant's birthday in April of 2011.

75. The defendant testified that the marriage broke down because the parties were working differing shifts at the casino, not spending time together and the plaintiff had an affair.

76. The plaintiff admitted to beginning a friendship in January of 2011 with a fellow employee at Foxwoods Casino that later developed into a romantic relationship.

77. The plaintiff contends that this relationship did not become romantic until after he separated from the defendant.

78. The defendant found the plaintiff texting this woman.   The defendant then searched his computer email account, located an email containing an indecent photograph of her and contacted her at the phone number indicated in the email.   According to the defendant, the woman confirmed an intimate relationship with the plaintiff and claimed to have had sexual relations with him in the parties' hot tub.

79. Initially, the plaintiff vacated the marital home and spent five nights at the Quality Inn in Plainfield, Connecticut before staying at his parents' home.   He ultimately returned to the marital home on June 23, 2011 and the defendant vacated the home.

80. Upon vacating the marital home, the defendant destroyed some of the marital property.   She testified to taking an axe to the hot tub and breaking the parties' outdoor fireplace by kicking it over because she was upset upon learning of the affair.

81. The defendant took some personal property with her including some that belonged to the plaintiff and left the house in a state of disarray.   (Plaintiff's exhibits from 10–17–11 hearing of which the court took judicial notice.)   Among the items she took were the plaintiff's work uniforms, electric razor, passport, social security card and birth certificate.

82. Both the defendant and her daughter, Lacey Hurlburt, testified that they took the plaintiff's motorcycle and kept it in storage until after the parties agreed to exchange some personal property following the second day of trial at the court's direction.

83. After returning to the marital home on June 23, 2011, the plaintiff changed the locks to the marital home because the defendant was entering the home and turning on the electrical appliances and running the air conditioning with the windows open.

84. The defendant then returned to the marital home with her daughter and son-in-law, escorted by two police officers, to retrieve more personal property.   The parties have differing stories as to what transpired on that day.   The plaintiff's account of the events that transpired was corroborated by the testimony of Officer Mark Rubera who stated that the defendant was belligerent, screaming and uncooperative throughout the process.

85. The court did not find the defendant credible with regard to her testimony concerning the events surrounding her departure from the marital home or efforts to retrieve the personal property.

86. The plaintiff testified that although he was having difficulty paying bills, he spent $500 in the summer of 2011 to replace the hot tub that the defendant had destroyed.

87. Much time was spent at trial concerning the personal property and the condition of its return to the defendant.  (Exhibits 9, 10, 13, N, O, P, Q, Y, Z, AA, BB.) The testimony and photographs introduced into evidence depicting the personal property establish that the personal property had more sentimental than monetary value.

88. The defendant seeks a credit of $10,000 for personal property left in the marital residence.

89. The plaintiff filed married and separate tax returns for 2011 claiming the entire mortgage interest and real estate tax deductions for the marital home.   He received a federal income tax refund of $3,608 and a state income tax refund of $233.   The plaintiff contends that his refunds were in large part attributable to his child dependency exemptions.

90. The defendant has an outstanding tax liability for 2011 in the approximate amount of $300.   She has not filed her 2012 tax return as she estimates she will also owe approximately $300 for the 2012 tax filing.

91. The plaintiff's financial affidavit lists $14,400 in credit card debt in addition to $21,000 in student loans.

92. The defendant, in addition to the IRS debt and medical bills, shows debts owed to her daughter and auto lender in the respective amounts of $1,200 and $1,345.

93. The court finds that the breakdown of the marriage was substantially caused by the defendant's anger issues, inability to get along with the plaintiff's family and to cope with the custodial issues surrounding the plaintiff's children.   The court notes that prior to the parties separating, they had not been romantically involved with one another for several years.   The plaintiff contends that his relationship with his current girlfriend did not become romantic until after the parties separated.   Nevertheless, while this relationship was not the sole cause of the marital breakdown as set forth above, it is a contributing factor which likely rendered any reconciliation less likely.   Thus, the court finds the parties equally at fault for the breakdown of the marriage.

After reviewing all of its findings and applying the various statutory criteria required by law as set forth above and in consideration of the evidence presented, the court HEREBY ORDERS:

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

The defendant seeks an award of alimony of $250 per week for the period of five years.   In determining whether to award alimony, the court considers the factors set forth in C.G.S. § 46b–82 including “․ the length of the marriage, the causes for the ․ dissolution ․ 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 custody has been awarded, the desirability of such parent's securing employment.”

In this matter the court finds that both parties were at fault for the breakdown of the marriage.   The parties were married for approximately nine years before separating.   Both parties are similarly situated in terms of the education and ability to earn.   Both are young and have no medical restrictions on their working ability.   The defendant had her CNA license and voluntarily allowed it to lapse.   She has been receiving alimony on a pendente lite basis for approximately 16 months and has made no efforts to have her license restored.   Moreover, even without the license, her hourly wages are comparable to those of the plaintiff.

Under the facts of this case and after consideration of the statutory criteria and the net income of the parties, the court orders that neither party pay alimony to the other.

3. ATTORNEYS FEES

The parties shall each be responsible for their own attorneys fees.   The court notes that the defendant withdrew $7,000 on the HELOC to pay her attorneys fees.   As set forth in paragraph 7 below, the plaintiff shall be solely responsible for, and shall indemnify and hold the defendant harmless from, the repayment of the HELOC.   Thus, to the extent the amount outstanding on the HELOC represents monies used for defendant's attorneys fees, it shall be the responsibility of the plaintiff to pay them.

4. PERSONAL PROPERTY

The wife shall be entitled to the camper.   The husband shall sign any necessary documentation to transfer ownership to the wife.

The wife shall immediately deliver to the husband any items associated with his Harley Davidson motorcycle including the spare keys.

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

Except as set forth above, the parties shall each retain, free and clear of any claim by the other party, the personal property currently in their possession.

5. LIABILITIES

The wife shall be solely responsible for her debts as listed on her financial affidavit filed at the time of the dissolution and shall indemnify and hold the husband harmless therefrom.

The husband shall be solely responsible for all debts listed on his financial affidavit filed at the time of dissolution and which encompass the parties' credit card debts and he shall indemnify and hold the wife harmless therefrom.

6. MOTOR VEHICLES

The wife shall retain all right, title and interest in the 2007 Chevrolet Monte Carlo and the 2003 Ridley Autoglide motorcycle.   The husband shall retain all right, title and interest in the 1999 Chrysler Town and Country Van, the 1995 Toyota T100 Pick Up Truck and the 2000 Harley Davidson FXSTD Motorcycle.   Each shall be solely responsible for all costs associated with their respective vehicles and shall indemnify and hold the other harmless therefrom.

The parties shall transfer title to the vehicles as ordered above within thirty (30) days of the date of judgment.

7. REAL PROPERTY

The wife shall quitclaim to the husband all of her right, title and interest in the marital home located at 273 Leonard Bridge Road, Lebanon, Connecticut.   The husband shall have exclusive possession of said home and he shall be solely responsible for all costs associated therewith including the first mortgage, the HELOC, taxes, insurance and the like and shall indemnify and hold the wife harmless therefrom.

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

The husband shall make diligent efforts to refinance the mortgage and HELOC on the marital home as soon as is practicable.   He shall make at least three applications within 90 days of the date of judgment and, if not successful, then he shall continue to make at least three applications each year.

The court will retain jurisdiction over the real estate for the purpose of effectuating the orders that enter herein pertaining to the real estate.

8. HEALTH INSURANCE

Each party shall be responsible for their own medical and dental insurance coverage.

9. TAX FILINGS

The husband shall be entitled to claim the real estate tax and mortgage deductions associated with the marital home on his 2013 State and federal taxes.

The wife shall be solely responsible for any taxes and penalties associated with the withdrawal of funds from her Canadian Retirement Account.

10. PROPERTY SETTLEMENT

The husband shall pay to the wife the sum of $5,000 within 60 days of the date of judgment, which sum takes into account the husband's unilateral decision to file separate State and federal income tax returns for the years 2011 and 2012, the difference in values with regard to the motor vehicles and retirement accounts, as well as the other assignment of property and liabilities ordered herein.

Connors, J.

FOOTNOTES

FN1. Plaintiff's father, who was ill at the time trial commenced, passed away on April 23, 2013..  FN1. Plaintiff's father, who was ill at the time trial commenced, passed away on April 23, 2013.

Connors, Susan A., J.