Dickie V. Murchison, Jr. v. Cynthia Palermo (2013)

MEMORANDUM OF DECISION

This is an action for dissolution of marriage and other relief brought to the Waterbury Judicial District.   The plaintiff and the defendant were married on April 26, 2002 in Waterbury, Connecticut.   Both parties have resided continuously in this state for at least 12 months prior to the date the complaint was filed.   This is the third marriage for the plaintiff and the first marriage for the defendant.   There are no children of this marriage.   The marriage of the parties has broken down irretrievably without any reasonable prospect of reconciliation.   Neither party has received support nor assistance from the state of Connecticut or any town or municipality of the state.

On May 14, 2013, at the commencement of this three-day trial, the parties entered into a written stipulation as to what agreements they had been able to reach and what issues they wished the court to decide.   This stipulation provided for the submission of exhibits without objection, the establishment of values for two real estate properties, a continuance date for the testimony of one rebuttal witness, and the correction for the record of the plaintiff's last name (from that which appeared on the complaint).   This agreement further stipulated that the marriage had broken down irretrievably, that the parties would retain the entire value of their respective retirement assets, that they would each retain the ownership of their respective automobiles, that each would be responsible for their respective student loans, and that each of the parties would retain ownership of their individual bank accounts.

This agreement further established the issues to be decided by the court as follows:  the terms and amount of periodic alimony requested by the defendant, the disposition of the two parcels of real estate jointly owned by the parties, the payment of debts identified on their financial affidavits, the disposition of a Harley–Davidson motorcycle registered in the name of the plaintiff, the payment of legal fees, the valuation of and distribution of defendant's claim as to plaintiff's alleged ownership of a landscaping business and equipment, and the valuation and distribution of personal property including hunting equipment and firearms.

It is further noted that on May 15, 2013 the parties entered into an additional stipulation to submit all remaining disputes regarding the personal property remaining at the marital premises to binding arbitration (thus disposing of all issues of personal property with the exception of the fishing boat), the cost of which would be divided equally.

The plaintiff is 46 years old.   He has both bachelors and masters college degrees.   He retired as a lieutenant in the Waterbury Fire Department and will be eligible to start receiving his pension of $2,500 per month from that employment commencing August 1, 2013.   The plaintiff left that position when he secured employment with the state of Connecticut as a state trooper.   He currently earns $1,422 gross and $856.09 net per week from that source of employment.

The defendant is 41 years old.   She has both bachelors and law school degrees and is currently employed by the State of Connecticut as a Senior States Attorney.   She earns $1,755 gross and $1,198 net per week from that source of employment.   She is vested in her pension, which will provide her with $1,559 per month at retirement.   If she were to be unable to work as a result of a disability, she would be entitled to a disability pension.

Both parties are therefore actively and gainfully employed by the State of Connecticut.   They both have post-graduate professional degrees and their incomes and retirements are independent and secure.

The plaintiff's health is good, with the exception of hypertension which he controls with medication.   The defendant is afflicted with multiple medical conditions.   Some are managed with diet, exercise, and medications.   She also, however, has a progressive abdominal disease that will require regular medical care to assess its progression and any needed treatments.   In addition, the defendant has suffered from significant medical issues with her eyes which have required her to undergo cornea transplant surgeries.   These conditions have not yet affected the defendant's work or performance.   While not necessary to set out the specific symptoms suffered by the defendant as a result of these conditions, it is noteworthy that both her quality of life and the intimacy sought by the parties have been affected.

On July 6, 2000 the plaintiff and Melody Morris, a woman with whom the plaintiff was dating at the time, purchased the land upon which the marital home was built.   The purchase price of the raw land, which is located at 26 Dodge Farm Road, Washington, Connecticut was $68,000.   On May 12, 2002 Ms. Morris transferred her interest in this property to the plaintiff in consideration of the sum of $10,000 (it is unclear as to what extent the defendant contributed to that payoff).   On May 24, 2002 the plaintiff put a construction mortgage on the property in the amount of $260,000.

The plaintiff, together with many of his family and friends contributed substantial time and effort into building the marital home.   This home, however, was not yet finished when title was placed in the joint names of the parties.   The leaching fields had not been installed and the interior of the home had not yet been completed.   Both parties actively participated in paying for the completion of the house and outfitting the interior of the home with flooring, painting and furnishings.

On May 18, 2004 the plaintiff transferred title of this property to himself and the defendant, jointly with rights of survivorship.   On that same date the plaintiff and the defendant signed a note and mortgage deed to The First National Bank of Litchfield in the amount of $340,000.   The proceeds of that loan were used to pay off the first mortgage, a second mortgage (previously placed on the property by the plaintiff in the approximate amount of $50,000), and several debts of the parties.   In the fall of 2008 the parties put a home-equity line of credit (HELOC) against this property in the amount of $41,500.   Both parties remain jointly liable for those mortgages, the current balances of which total approximately $335,000.

For the last nine years the mortgage has been paid from the joint account of the parties, the most significant portion of which was contributed by the defendant.

On March 5, 2012, while the parties were participating in family mediation, they signed a listing with David L. Bain Real Estate Investments, Inc. to sell the house at a listing price of $525,000.   When the six-month listing period expired the plaintiff refused to sign another listing agreement.

Both parties wish this property to be worth more than it now is.   They share their disappointment with countless others who have seen their property values plummet.   The court, however, must value the property as of the date of the dissolution, and the parties have stipulated that the current market value of this property is $402,000.   Also, both parties wish the court to enter orders based upon what each of them perceives as inequitable contributions to the acquisition of this property and financial support, but each party has failed to appreciate the positive contributions of the other.

On April 11, 2011 both parties contracted to buy real property located at 8442–8444 State Road 3, Pulaski, New York for the purchase price of $80,000.   This purchase was not an arms-length transaction, but was used to facilitate a transfer of title from the seller, the plaintiff's sister, who did not qualify for certain medical assistance so long as title to this property was in her name.   The use of this property has been to house the plaintiff's disabled brother, whose disability income is used for the payment of the mortgage and household expenses.   The parties placed a mortgage on the property in the amount of $64,000 with Alliance Bank. There were no deposit monies paid, as there was a “gift of equity” from the seller in the amount of $16,000.   The parties have stipulated that the value of this property is now $40,000.

The plaintiff and the defendant were incompatible in many ways.   Yet, despite their numerous claims as to the faults and shortcomings of the other, each of the parties did support and help each other through their physical and financial problems.   In that regard the plaintiff assisted the defendant through many of her medical issues and took primary responsibility for the maintenance and upkeep of the marital home.   On the other hand the defendant provided significant financial support to the plaintiff, as she cosigned mortgages for the plaintiff and also took title to and undertook obligations for property she had no personal interest in.   She also assisted the plaintiff in the payment of his child support obligations (both from the joint account and from the HELOC).

Further, the defendant did not object to the plaintiff depositing his deferred compensation monies of almost $45,000 into his own account during the time she was contributing more to the household account that he was.   In that regard, during the course of the marriage she deposited in excess of $140,000 more than the plaintiff into their joint account.   The defendant also helped to support the plaintiff during the time of his state trooper training, when his income was substantially reduced.

Eventually, however, the commitment they made to each other could not overcome their differences and they grew apart.   Neither party is solely responsible for the breakdown of this marriage.

This Court has specifically considered all statutory provisions and case law affecting the issues in this case as well as the testimony and evidence presented by the parties.   The Court enters the following orders:

A. DISSOLUTION OF MARRIAGE

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

B. WRITTEN STIPULATIONS OF THE PARTIES

The written stipulations of the parties dated May 14 and May 15, 2013 were reviewed by the court, were found to be fair and equitable, and their terms and conditions are hereby incorporated into these final orders and judgment.

C. DISPOSITION OF REAL PROPERTY AT 26 DODGE FARM ROAD

The plaintiff shall have the option to purchase the marital home “as is” for the effective gross price of $390,000.   If he so elects, he must notify the defendant in writing of his election within 30 days of the date of this judgment and he must effect the purchase within 60 days from the date of that notification.   He must pay off all existing encumbrances and also pay the defendant the sums of $27,500 (representing her equity interest in this property) and $5,500 (representing 1/2 of the combined value of the Harley–Davidson motorcycle and the fishing boat), totaling $33,000 for her interests therein.

If the plaintiff does not elect to purchase this property upon those terms and conditions, then the plaintiff's said option shall expire and the parties shall then list this property for sale with a realtor of their mutual choice.   If the parties cannot mutually agree to a realtor they shall list the property with David L. Bain Real Estate Investments, Inc. The property shall be listed for sale at price mutually agreeable to the parties.   If they cannot reach an agreement as to the listing price it shall be placed on the market at a listing price of $450,000.   The realtor shall aggressively market said property and report any activity to both parties.   Any reasonable and legitimate offer shall be accepted by the parties.   The listing price shall be reduced by 4% every 90 days.

All encumbrances against this property are to be paid in full from the proceeds of the sale.

The remaining proceeds shall be divided equally between the parties.   The plaintiff shall then pay the sum of $5,500 to the defendant from his share of the proceeds.

Until such time as this property is either acquired by plaintiff or sold, the defendant shall have the right to reside in said property for so long as she pays the mortgages, the HELOC, all utilities, taxes, insurance, pest control and all other normal and reasonable expenses for the maintenance of the property.   The plaintiff is ordered to pay to the defendant the sum of $1,500 per month toward said expenses beginning August 1, 2013 until this property is either acquired by the plaintiff or sold.   In addition, the parties are to equally divide any extraordinary costs (over $500) for any maintenance or repairs that may be incurred until the property is either acquired or sold.   The parties shall also equally pay for any improvements reasonable and necessary for the house to be sold.

If the defendant should vacate the marital residence before the plaintiff's acquisition or the sale of said property, the plaintiff shall no longer have any obligation to pay $1,500 each month to the defendant, but rather any and all expenses necessary to maintain said property shall be shared equally by the parties.

For so long as the defendant is living in said home she shall keep said premises in good condition to be shown for sale at all times, pursuant to the recommendations of the listing realtor, until the property is sold.

Both parties shall fully cooperate in the effort to sell the property and shall do all things reasonable and necessary to sell said property.

D. DISPOSITION OF PROPERTY AT 8442–8444 STATE ROUTE 3

The defendant shall quitclaim her interest in this real estate to the plaintiff within thirty (30) days.   The plaintiff shall assume, pay and hold the defendant harmless from the mortgage and any other debt associated with this property.   The plaintiff shall immediately make a good faith effort to refinance this property and remove the defendant's name from any obligation therefrom.   He is to pay any necessary fees associated with his applications and provide verification of his attempts to the defendant.

In the event he is unable to refinance said property at this time, the plaintiff shall continue to maintain said property in good condition, pay all debts and obligations associated therewith and hold the defendant harmless from any liability therefrom.   The plaintiff is to once again make good faith efforts to refinance this property in eight (8) months and remove the defendant's name from any obligation therefrom.   He is to pay any necessary fees associated with his applications and provide verification of his attempts to the defendant.

In the event the plaintiff is unable to remove the defendant's name from the debts associated with this property by that time, he shall list the property for sale at a price recommended by a real estate appraiser to be hired by the plaintiff.   The plaintiff shall use his best efforts to sell said property and shall accept any reasonable offer.   In the event that such property shall be sold for less than the then outstanding debt encumbering such property, the plaintiff shall pay such sum and indemnify and hold the defendant harmless therefrom.   Any net proceeds remaining from the sale of such property shall belong solely to the plaintiff.

E. DISPOSITION OF THE MAYAN RESORTS TIME–SHARE

The parties shall immediately sell their interest in this time-share and the net proceeds shall be equally divided between them.   Until said time that this time-share is sold, the parties shall equally pay for any expenses associated therewith.

F. ALIMONY

The plaintiff shall pay one ($1) dollar per year to the defendant for alimony, for a period of five years.   Said alimony shall not be modifiable as to duration.   Said alimony shall only be modifiable as to amount if the defendant must, as a result of the progression or exacerbation of her current medical condition(s), limit or cease working in her current profession, as determined by her medical provider(s), but only if said determination that the defendant must limit or cease her employment is confirmed by a disinterested, independent medical specialist of the relevant specialty.   The parties shall both approve of the specialist, which approval shall not be unreasonably withheld, and both shall be equally responsible for the cost of said independent medical examination.

G. MOTORCYCLE AND FISHING BOAT

In consideration of the plaintiff's payment of $5,500 to the defendant, as previously ordered, the plaintiff shall be allowed to retain title and ownership to the Harley–Davidson motorcycle and the fishing boat, and shall hold the defendant harmless from any liability therefrom.

H. LEGAL FEES

Legal fees are not awarded to either party.

I. DEBTS

Each of the parties shall pay the debts shown on their respective financial affidavits, except for the VISA Cabela's credit card, which each party shall pay one-half of the balance due as of May 14, 2013 within 90 days from the date of this judgment.   Any charges made after that date are to be paid by the party making those charges.   No further charges are to be made from this account from this time forward and this account is to be closed once it is paid in full.

J. JOINT BANK ACCOUNTS

All balances held in any joint bank accounts shall immediately be divided equally between the parties.

K. INSURANCE POLICIES

Each of the parties shall maintain and pay for their own medical, life and respective automobile insurance policies.

L. MISCELLANEOUS ORDERS

1. The court shall retain jurisdiction to effect the disposition of the real properties that are the subjects of this judgment, and

2. Counsel for the plaintiff is to prepare the judgment file within 30 days and send it to counsel for the defendant for signature.   Counsel for the defendant shall sign said judgment file and return same to court within 15 after his receipt.

RESHA, J.T.R.

Resha, Robert T., S.J.