Lisa Baker v. Gerald Baker (2013)

MEMORANDUM OF DECISION

The plaintiff commenced this action seeking a dissolution of the parties' marriage on the grounds of irretrievable breakdown by way of a complaint dated February 14, 2012.   The parties reached an agreement as to custody, visitation and child support, but were unable to come to terms regarding alimony and the division of their property.   Trial of the matter took place on June 27, 2013 and July 2, 2013.   Both parties were represented by counsel.   The only witnesses were the parties themselves.

The court finds the plaintiff, whose birth name was Lisa Cushman, and the defendant were married on June 22, 1991 in South Windsor, Connecticut.   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 three minor children ¹ issue of the marriage, to wit:  Chelsea Baker, born August 12, 1996;  Frankie Baker, born January 20, 2001 and Brianna Baker, born December 26, 2005 and one adult child under the age of twenty-three, to wit:  Brian Baker, born August 30, 1992.   The family has not been the recipient of state or municipal assistance.

The plaintiff is 47 years of age and in generally good health.   She has suffered with depression since being in high school, but appropriately manages her symptoms with medication.   She has a Bachelors of Arts degree in Human Relations and Family Development from the University of Connecticut.   In the year prior to the parties' marriage, she was employed part-time with a temporary agency and for two years prior thereto as a claims adjuster at CNA Insurance.   She has been a full-time homemaker since the birth of the parties' son Brian in 1992.   In 2001, the parties became licensed foster parents and later that year took in their son Frankie when he was an infant.   Frankie, whom they adopted in 2003, is a special needs child.   He is now 12 years of age, but functions on the emotional level of a 6–year–old.   He attends the Institute of Living and suffers from Obsessive Compulsive Disorder, Attention Deficit Hyperactivity Disorder, anxiety and seizures.   During the course of any given month, the plaintiff is often called upon to pick him up from school due to medical or behavioral issues.   In November of 2012 Frankie attempted suicide and was hospitalized for 10 days.

In April of 2001 the parties also became foster parents for Brianna.   Brianna is also a child with many special needs and demanded a lot of the plaintiff's time.   Brianna's behavior was very disruptive to the family and both parties testified that her introduction into their family was a substantial cause contributing to the breakdown of their marriage.

Presently, the defendant is 49 years old and in generally good health.   He has a high school education.   He served in the Navy for 91/212 years, but retired without any military benefits.   Since leaving the Navy he has consistently been employed.   First with Northeast Utilities, then Millstone and now Dominion.   Presently he is a Supervisor and holds a Senior Reactor Operator (SRO) license.   He earns a gross annual wage of approximately $167,000.   His base annual pay is $114,000.   He nets $1,704 weekly exclusive of overtime, bonuses and additional compensation he receives for having his SRO license.   As part of his compensation package he receives an annual incentive bonus based upon the company's performance.

In January of 2013, he received his lump sum compensation of $16,000 for his SRO license.  (Exhibit 12.)   In February of 2013, he received his annual incentive bonus in the gross amount of $7,989.01.  (Exhibit 13.)   None of those monies were shared with the plaintiff.   In 2012, he received $14,900 for his SRO license and $9,323.94 for his annual incentive bonus.  (Exhibit 10.)   In 2011 he received $14,900 for his SRO license and $13,991.70 for his annual incentive bonus (Exhibit 9) and in 2010 he received $14,900 and $14,123.58 respectively.  (Exhibit 8.)

The parties currently do not own any real property.   They sold their marital home at a loss and currently owe the plaintiff's parents approximately $24,118.77 for the amounts they loaned the parties to cover the mortgage deficiency.

The plaintiff has a 2005 Chrysler Town and Country van and a 2006 Dodge Durango, which she values at $6,000 and $10,000 respectively.   The defendant has a 1999 Chrysler Sebring and a 2002 Ford Escape, which he values at $1,500 and $500 respectively.   There are no outstanding auto loans whatsoever.

The parties have a consolidated debt loan of $65,000, but the testimony reflected that no payments are being made on that loan.

With regard to assets, they consist solely of the defendant's 401k, IRA and pension.   There is presently approximately $27,500 remaining on a loan the defendant took against his 401k for the purpose of paying for their son Brian's college tuition and other household bills.   Brian did not complete his college studies and neither party is seeking a post-majority support order with regard to Brian.   The defendant's 401k balance is approximately $164,000 less the loan balance of $25,000 reducing it to $136,500.   The defendant also has an IRA with a $2,000 balance.   With regard to his pension, it is a defined benefit plan that will provide him with a monthly benefit in the amount of $1,947.   The defendant testified that he is vested in the plan and that the company has a rule of 85, but that he does not know specifically when he is eligible to retire.   He did testify that he has been with the company 20 years and is 49 years of age.

The marriage has broken down irretrievably.   The stress placed upon the parties by Brianna was a substantial factor contributing to the breakdown of the marriage as was the defendant's gambling.   The testimony established that over the past several years the defendant spent a significant amount of time and money at the Mohegan Sun casino.   The plaintiff testified that the defendant would not be reachable for hours and that when he did return home he admitted to being at the casino.   The defendant testified that to some extent it was his escape or replacement for what had once been their family life.   The bank records introduced into evidence established that he either wrote checks or withdrew sums from automatic teller machines when he was at the casino or immediately before or after in amounts that approximated between 20–30% of his gross income depending on the year.   There was no evidence regarding any win/loss statements, as the defendant refused to produce the same in response to discovery requests.   Nevertheless, he testified that he lost more than he won.   He recalled only one occasion when he won $16,000 and used the funds to take the family on a vacation.   He also testified to being the subject of a scam starting in November of 2012 pursuant to which he gave a purported love interest $10,000.   Not only did his gambling cause him to be further removed from the family, but it undoubtedly caused further financial strain on the marriage.   The testimony established that in the more recent years of the parties' marriage, the defendant was responsible for managing the finances.   Other than the evidence regarding the cash withdrawals, the only other evidence to account for the parties' poor financial condition was the purchase of a new home, which essentially tripled their mortgage payment.

The plaintiff further testified that the marriage broke down because she felt physically intimidated by the defendant and could not trust him as he was dishonest about his gambling.   The defendant testified that he was responsible for the breakdown of the marriage in the sense that he should not have agreed to adopt Brianna, but he knew how much love the plaintiff had for her and he wanted to save their marriage.   He also testified that his absences from the home as a result of his job, which requires him to be away for twelve hours at a time and the time at the casino, was also a stressor.   The court finds the defendant to be more at fault for the breakdown of the marriage than the plaintiff.

Discovery Abuse

The plaintiff began making discovery requests from the plaintiff in March of 2012.   Thereafter in November of 2012, the parties entered into a stipulation by which the defendant agreed to produce certain documentation by December 3, 2012, which he failed to do.   The plaintiff then filed a motion for sanctions and the court entered discovery orders.   On March 2013, the court ordered the defendant to pay $750 in attorneys fees and to produce the missing documentation in response to the standard discovery and production requests on or before March 20, 2013 or be subject to a $100 per day penalty for noncompliance.   The defendant failed to comply with this court order.   Specifically, the defendant failed to produce information pertaining to his life insurance and COBRA benefits.   With regard to his COBRA benefits, the defendant testified that he made calls to his human resource department and obtained information, which he relayed to his attorney, but claimed that the company policy was to not provide the information in writing.   Defendant did introduce into evidence an email dated March 27, 2013 from defendant's counsel to plaintiff's counsel outlining the costs of the COBRA benefits.  (Exhibit 17.)   As of the date of trial, defendant has not produced information pertaining to his life insurance.

Additionally, on June 23, 2013 the defendant was duly served with a subpoena duces tecum directing him to produce certain documents on June 27th, the day of trial, including his records pertaining to his Mohegan Sun Player's Club Card from January 1, 2010 through the present, copies of all bank records for any account from which he withdrew funds used for gambling, as well as the documentation outstanding from the prior orders.   On July 2, 2013, the defendant admitted to having lunch at the Mohegan Sun Casino on June 27, 2013 before coming to trial.   He had testified on June 27th that he did not try to obtain the casino records because he was trying to stay away from the casino.   With regard to the bank records, he testified that they were joint accounts and were as easily accessible to the plaintiff as they were to himself.   This was not true with respect to his Peoples' bank account.

Moreover, the defendant was served with a subpoena duces tecum on June 23, 2013 commanding him to bring to court the outstanding document discovery requests as well other specified documentation.   The defendant testified that he made no efforts to comply with the subpoena.

Our courts have consistently held that it is within the discretion of the court to award attorneys fees to an aggrieved party when the failure of the other party to comply with discovery and orders has caused him or her to incur legal fees.  Jewett v. Jewett, 265 Conn. 669, 694, 830 A.2d 193 (2003);  see also Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007).

The court finds that the defendant had the ability to comply with the court orders and willfully failed to do so.

The court has carefully considered all the credible evidence, the net incomes of the parties as well as the respective criteria for orders of alimony, property division and payment of counsel fees.   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. Custody

The court hereby adopts the parties' stipulation to joint legal custody of their minor children with primary physical custody with plaintiff wife subject to open and liberal visitation and access with the defendant husband to be worked out by the mutual agreement of the parties.

3. Child Support

The court hereby adopts the parties' stipulation that the husband shall pay to the wife the sum of $355 per week as child support for the benefit of the minor child Chelsea.   Based upon the net incomes of the husband at $1,646 and the wife at $365, the presumptive support amount is $349.   The parties have stipulated to the sum of $355 which is in substantial compliance with the guidelines.

The parties have further stipulated that the guidelines shall not be applicable to the minor child Frankie as the plaintiff is receiving a weekly stipend for Frankie from the Department of Children and Families.

4. Children's Medical Insurance

a. The husband shall continue to maintain orthodontia and dental insurance for the benefit of the minor children as available through his employment.

b. The parties shall share equally in all unreimbursed medical, dental and mental health expenses of the minor children, with payment to be made to the appropriate party within three (3) days of receipt of a written request that is accompanied by proof of the expense and payment.

5. Child Care and Camp

In accordance with the parties' stipulation, they shall be equally responsible for all day care and camp expenses for the minor child Frankie.   As the defendant is not currently employed, there is no requirement that the day care be work-related.

6. Post–Majority Educational Support

The court shall retain jurisdiction over the post-majority educational expenses of the minor children in accordance with Gen.Stat. § 46b–56c pursuant to the stipulation of the parties.

7. Alimony

a. The husband shall pay to the wife the sum of $650 per week as periodic alimony for the period of 11 years, or the death of either party or the wife's remarriage or cohabitation with an unrelated person pursuant to Gen.Stat. § 46b–86b.   The husband proposed an alimony order for a period of 11 years;  whereas, the wife proposed an alimony order until such time as she is eligible to receive her full social security old age benefits.   The court finds that in light of all the statutory criteria, the 11–year period is appropriate.   There is a need for the wife to be available at the present time for the parties' son Frankie who hopefully will become less dependent on her as he matures.   Frankie will be approximately 24 years of age in 11 years.   In the meantime, as he continues to mature and emotionally develop, the wife will be able to rehabilitate herself and reenter the work force.

b. Additionally, the husband shall pay to the wife as alimony 35% of the gross compensation the husband receives on an annual basis for having his Senior Reactor Operator's License.   Said sum shall be paid to the wife within 7 days of receipt by the husband.

c. Additionally, the husband shall pay to the wife as alimony 35% of the gross of any incentive bonus the husband receives.   Said sum shall be paid to the wife within 7 days of receipt by the husband.

d. Alimony shall be modifiable and as set forth in paragraph a above, shall terminate upon the death of either party, the wife's remarriage or her cohabitation with an unrelated person pursuant to Gen.Stat. § 46b–86b.

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

f. The husband shall receive no alimony from the wife.

8. Life Insurance

a. The husband shall continue to name the wife as irrevocable beneficiary on his existing life insurance through his employment with a face amount of $106,000 and on his Navy Mutual Aid policy with a face amount of $200,000 for so long as he has any support obligations owing pursuant to this judgment.

b. The wife shall designate the minor children as equal beneficiaries on her existing life insurance policy with Navy Mutual Aid until Chelsea is over the age of 23 or is no longer receiving post-secondary education, at which time the wife shall name the minor child Frankie as the sole beneficiary of the policy until such time as he reaches the age of 23.   The wife shall name a trustee for the benefit of the minor children.

c. The parties shall each furnish to the other proof that he or she is insured in the specified amount together with proof of the beneficiary designation on or before July 1st of each year.

9. Medical Insurance

a. Each party shall be responsible for his or her own medical insurance.

b. The husband shall cooperate with the wife to assist her in obtaining COBRA benefits, if she so elects.

10. Personal Property

Each shall keep free and clear of any claim by the other the personal property they now have in their possession.

11. Bank Accounts

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

12. Retirement Assets/Pension

a. The parties shall equally divide, as of the date of dissolution, together with any gain or losses thereon, the defendant's 401K and IRA.

b. The plaintiff shall receive 50% of the marital portion of the defendant's Dominion pension, payable to her as a separate interest, together with any cost of living adjustments or early retirement supplements applicable to her share.

c. The parties shall share equally in the expense of preparing any Qualified Domestic Relations Orders (“QDRO”) necessary to divide the retirement accounts in accordance with a 50–50 distribution of retirement assets.

d. The court shall retain jurisdiction over any QDRO for the purpose of its effectuation in accordance with the orders herein.

13. Motor Vehicles

a. The husband shall retain all right, title and interest in the 2002 Ford Escape and the 1999 Chrysler Sebring.   He shall hold the wife harmless and indemnify her from all costs associated therewith including property taxes, insurance and registration for this vehicle.

b. The wife shall retain all right, title and interest in the 2005 Town and Country vehicle and the 2006 Dodge Durango.   She shall hold the husband harmless and indemnify him 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.

14. Property Settlement

a. The husband shall pay to the wife the sum of $12,000 by way of a property settlement to compensate her for sums he received for his 2013 SRO license and annual incentive bonus and spent for non-marital purposes.

b. Said $12,000 shall be paid in monthly installments of no less than $1,000 per month on or before the 15th of each month commencing August 2013 and must be paid in full on or before January 31, 2014.

15. Tax Filings and Issues

a. The parties have filed and anticipate state and federal income tax refunds for the 2012 calendar year.   They do have an outstanding federal tax liability for a prior year.   They shall share equally in any refunds resulting from the 2012 tax filings.

b. The husband shall claim the minor child Chelsea and the wife shall claim the minor child Frankie as a dependent for federal and state income tax purposes in all years in which said children may be claimed.   Each party shall sign any documentation necessary to effectuate this order.

16. Debts

a. The parties shall be equally responsible for the debt owed to the IRS.

b. The parties shall equally be responsible for the outstanding obligation owed to the plaintiff's parents in the amount of $24,118.77.

c. Except as set forth above, the parties shall each be liable for the debts listed on their respective financial affidavits and hold the other harmless and indemnified.

17. Attorneys Fees/Sanctions

a. The court is imposing sanctions against the defendant for failing to comply with discovery orders of the court in the amount of $9,900.00 to be paid in full within one year from the date judgment.   The defendant shall begin making minimum monthly payments of $500 on or before the 30th of each month commencing in August 2013 to the Law Offices of Chinigo, Leone & Maruzo, LLP.

b. Except for, and in light of the sanctions entered in paragraph a above, the husband and wife shall each be responsible for their own counsel fees in connection with this action.

18. 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 adopted the minor child Brianna Baker, born December 26, 2005;  but have stipulated that they have consented to a termination of parental rights proceedings in the juvenile court system and are currently awaiting the court order terminating their rights.   For this reason, they seek no orders pertaining to the minor child Brianna..  FN1. The parties adopted the minor child Brianna Baker, born December 26, 2005;  but have stipulated that they have consented to a termination of parental rights proceedings in the juvenile court system and are currently awaiting the court order terminating their rights.   For this reason, they seek no orders pertaining to the minor child Brianna.

Connors, Susan A., J.