Philomena Ruutel v. Benjamin Ruutel (2013)

MEMORANDUM OF DECISION

This dissolution of marriage action was commenced by the plaintiff, Philomena Ruutel, against the defendant, Benjamin Ruutel, by summons and complaint dated July 18, 2012 and made returnable to this court on August 7, 2012.   The case was tried before the court on July 30, 2013.   The plaintiff was represented by Attorney Mary M. Puhlick of Puhlick & Cartier, PC and the defendant represented himself.   The primary disputed issues before the court are alimony and responsibility for a loan associated with purchase and installation of windows in the marital home.¹  The court heard testimony from both parties.   No other witnesses were called.   The plaintiff introduced seven exhibits into evidence consisting of tax returns, the defendant's pay stubs, verification of his employment and a summary of his 401k account.

Upon careful consideration of the evidence presented and the pertinent statutory law, in particular General Statutes §§ 46b–82 (alimony), 46b–81 (assignment of the marital estate) and the relevant case law, and having observed the demeanor of the parties at time of trial, the court makes the following findings of fact and conclusions of law.

I

Jurisdiction

The plaintiff whose birth name was Philomena Marabello married the defendant on April 2, 1983 in Mystic, Connecticut.   The plaintiff continuously resided in Connecticut for at least one year before this action was commenced.   Neither the parties nor their children have been the recipients of state or municipal assistance during the marriage.   The plaintiff is not currently pregnant.   The court finds that the allegations of the complaint are proven and true.   The parties' marriage has broken down irretrievably and there is no hope of reconciliation.   All statutory stays have expired.   The court has jurisdiction over this matter.

II

Marital History and Financial Assets

The plaintiff had a son from a prior union when the parties married.   The defendant considered this child to be his own as well.   The parties also had two children issue of their marriage;  a son, David, and a daughter, Vanessa, both of whom were over the age of 23 at the time the plaintiff commenced this action.   The plaintiff testified that she thought the parties had a very strong and supportive marriage.   The parties survived many hardships and tragedies including the death of their eldest son, the trial and tribulations of their younger son's disease of addiction and financial hardships resulting from the defendant's loss of employment and failed business attempt.   The plaintiff testified that all of these factors contributed to the breakdown of the marriage, but what ultimately caused its demise was the defendant's unfaithfulness.   The plaintiff testified that she felt blindsided upon learning that the defendant had been unfaithful to her during the course of the marriage.   The plaintiff discovered that the defendant was having an affair via the defendant's usage of his cell phone to contact his current girlfriend.   The plaintiff was willing to attempt reconciliation, but abandoned the effort and asked the defendant to vacate the marital residence after speaking with another woman with whom the defendant had also had an affair.   The defendant admitted to having three separate affairs.   The defendant vacated the marital residence in July 2012.   The court finds the defendant to be more at fault for the breakdown of the marriage due to his various affairs and infidelities.

The plaintiff is 60 years old and in good physical and mental health.   She has worked consistently throughout the parties' marriage.   She has been licensed as a hair stylist since 1996 and currently owns her own salon, Special Effects Hair Salon.   No evidence was introduced by either party regarding the assets or value of the business.   Nor does the plaintiff list any value for it on her financial affidavit.   The plaintiff reports that her business has been steady and that she has no other employees.   She works 4 days per week at 10 to 12 hours per day.   The tax returns that were introduced into evidence show gross receipts of $65,200, $65,435 and $63,364 for the years 2012, 2011 and 2010 respectively.   Her adjusted gross income for those years is reported as $29,690, $32,704 and $27,379 respectively.   A review of the tax returns introduced into evidence coupled with the plaintiff's testimony establish the business deductions claimed by the plaintiff.   The evidence also established that the salon is in part a cash business.

The plaintiff attended family counseling with the defendant and their children as a result of their son David's disease of addiction.   Due to David's sobriety, the family counseling ended in April of 2012.   The plaintiff has since sought individual therapy to help her cope with the dissolution of her marriage.   She remains in therapy at the present time.   Additionally, the plaintiff treats with a chiropractor on a weekly basis as a result of the stress placed upon her body as a result of having to be on her feet to perform her job.   She also treats for a prior shoulder fracture.   She has also been treated for basal cell carcinoma.   The defendant currently carries health insurance for the plaintiff.   She testified that health insurance will cost her approximately $700 per month.

The plaintiff reports a net weekly wage of $538 on her financial affidavit and total weekly expenses of $1,349.   She has outstanding credit card debts totaling $26,253, the vast majority of which are joint marital debts.   She owns a 2012 Nissan Juke valued at $21,000, but the vehicle is encumbered by a loan of equal amount.   She has approximately $800 in various bank accounts and no retirement accounts.   She had an IRA with approximately $8,000, but cashed it in during the marriage to pay off debt associated with the defendant's cigar shop business.

The plaintiff currently resides in the marital home with the parties' son and his girlfriend.   She testified that she collects rent from them in the amount of $500 a month, but intends to return it to them when they move out as the parties had done for their daughter.   The plaintiff values the home at $204,000;  whereas, the defendant values it at $260,000.   Neither party introduced an appraisal or any other documentary evidence concerning the value of the home.   There was testimony and is considerable disagreement between the parties regarding the loan with Core Plus. The Core Plus loan was taken out and used by the parties to purchase and install new windows in the marital home.   The plaintiff shows a remaining loan balance of approximately $17,000 and although she wants to retain ownership of the marital home she feels the defendant should be responsible for the loan.   She claims that at the time the loan was taken out the defendant was involved in an affair and that had she known, she would not have chosen windows that were as expensive as the ones the parties selected.   The defendant, on the other hand, maintains that the windows go with the house and if she retains ownership of the house she should be responsible for the Core Plus loan.

The parties also own a time share.   The plaintiff values the time share at $7,000 and the defendant values it at $13,000.

The defendant is 53 years old and in generally good health although he had a stent placed in his heart in 2009 as a result of an 80% blockage and also underwent surgery for bilateral carpal tunnel disease in the earlier part of this year.   There was no testimony to indicate that either condition in any way interferes with his ability to work.   To the contrary, both parties testified that the defendant, who is a licensed electrician, has always taken pride in supporting his family and has worked whatever overtime was available to him in order to make ends meet.   At one point he lost his job and pursued his dream of opening a cigar shop.   The plaintiff supported him in this endeavor.   Unfortunately, the business was not successful.   In 2007, after the failure of the cigar shop, he took employment with the Mashantucket Pequot Gaming Enterprise (“Foxwoods”) as a Maintenance Electrician.   In 2011 his base pay was $45,659.20 and he earned overtime pay of $20,513.51.   In 2012, his overtime pay was $18,741.34.   According to his pay check dated July 15, 2013, he has earned $9,396.84 in overtime wages through July 6, 2013.   His current hourly wage is $25.65.   He works 40 hours per week for a gross weekly wage of $1,026 exclusive of overtime.   He reports a net income of $580 exclusive of overtime.   He shows weekly expenses of $735 and credit card debts of approximately $24,000.   Those credit card debts were incurred since the parties separated and are in addition to the joint marital debts listed on the plaintiff's financial affidavit.

The defendant owns a 2010 Mercedes C300, which he purchased during the course of these proceedings, and values at $27,000.   The vehicle is encumbered with a loan in excess of the value.   The defendant traded in two vehicles, a Ford Explorer and a Dodge truck, to purchase the Mercedes.   He actually lowered his car payment, insurance and gas expenses by doing so.   He is scheduled to make his first car loan payment in August.   He was given a three-month grace period with no payments.   The defendant also has a 2007 Harley Davidson Ultra Classic motorcycle that he values at $10,000.

The defendant has a 401k with an approximate balance of $20,000.   He has an outstanding loan against the balance in the approximate amount of $6,000.   He took the loan out at or about the time the instant action was commenced, but there was no testimony regarding the disposition of the loans proceeds.   The plaintiff seeks 50% of the 401k balance exclusive of the loan.   The Defendant also has a vested interest in a pension through his Electrical Union.   Both parties agree that the plaintiff shall be entitled to 50% of the value of his pension.   Additionally, the defendant owns stocks valued at $800.   The plaintiff makes no claim in her proposed orders for the stock.

The defendant has been residing with his girlfriend since September of 2012 and pays the vast majority of their expenses as she lost her job.   Prior to her losing her job, she did contribute to their household expenses.   The defendant purchased a diamond ring for his girlfriend.   The ring is financed with Kay Jewelers and appears on his financial affidavit.   He also took a trip to Florida with his girlfriend in the Spring of this year.

III

DiscussionAAlimony

The plaintiff proposes that she receive $350 per week alimony for the period of 15 years.   The defendant proposes that neither party receive alimony.

In determining whether to award alimony and the duration and amount of the award, the court “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 and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–91, and, in the case of a parent to whom the custody of minor children was been awarded, the desirability of such parent's securing employment.”  Conn. Gen.Stat. § 46b–82.  “There is no absolute right to alimony ․ Awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court.”  (Citations omitted.)  Weinstein v. Weinstein, 18 Conn.App. 622, 637, 561 A.2d 443 (1989).

The parties are of similar age, health and station.   Both parties have worked throughout the marriage and have comparable net incomes.   The defendant's net income exceeds the plaintiff's when his overtime is factored in.   However, the plaintiff also has the ability to work additional hours and supplement her income as well.   She herself testified that her business is steady and that she works 4 days per week at 10 to 12 hours per day;  approximately the same number of hours the defendant works.   Being self-employed also gives the plaintiff greater flexibility and control over her schedule and work load than the defendant.

B

Assignment of the Marital Estate

The plaintiff proposes that she be awarded the time share and the marital residence free and clear of any claim by the defendant, but that he be responsible for the window loan with Core Plus. She also proposes that he sell his motorcycle and apply the proceeds towards the parties' marital debt.   The defendant put forth two proposals.   First, he proposes that the plaintiff be awarded the time share and the marital home with him receiving his share of the equity and the plaintiff being responsible for the Core Plus loan.   In the alternative, he proposes that the time share and the marital home be sold with the proceeds being applied toward the joint marital debt and the parties sharing equally in any remaining sums.   Under each proposal he seeks to retain his motorcycle.

“The assignment of property in a marital dissolution rests in the sound discretion of the court.”  Ridgeway v. Ridgeway, 180 Conn. 544 (1980).  “In fixing the nature and value of the property, if any, to be assigned, the court ․ 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.”  Gen.Stat. § 46b–81(c).

IV

Findings and Orders

1. Dissolution:  The marriage of the parties is dissolved on the grounds of irretrievable breakdown.   The parties are declared single and unmarried.

2. Alimony:  No alimony is awarded to either party.

3. Health Insurance:  Each party shall be responsible for his or her own health insurance and unreimbursed medical expenses.

4. Marital Residence:  The defendant shall quit claim to the plaintiff all of his right, title and interest in the real property located at 12 Southgate Circle, North Franklin, Connecticut, and she shall be solely responsible for all costs associated therewith and shall hold the defendant harmless and shall indemnify him for any liability arising therefrom.   The plaintiff shall be solely entitled to any equity in the property.

The plaintiff shall make diligent efforts to refinance the property or to otherwise remove the defendant from liability on the existing mortgage within 1 year from the date of judgment.   In the event she is unable to do so she shall list the property for sale at its fair market value with a MLS real estate agent familiar with real property values in the North Franklin area.   She shall accept the first bona fide offer within 5% of the listing price.   If the home is not sold within 45 days of the listing, the price shall be reduced in accordance with the recommendation of the listing agent.

The court shall retain jurisdiction over this matter for purposes of enforcing and effectuating the orders that enter herein with regard to the refinancing or sale of the marital home.

5. Time Share:  The plaintiff shall retain all right, title and interest in the time share free and clear of any claim by the defendant and she shall be solely responsible for all dues, maintenance fees, costs and the like associated with said time share and shall hold the defendant harmless and shall indemnify him for any liability arising therefrom.   The defendant shall cooperate in signing any paperwork or documentation that is necessary to effectuate this transfer.

6. Business:  The plaintiff shall retain all right, title and interest in her business known as Special Effects Hair Salon free and clear of any claim by the defendant and she shall be solely responsible for all costs associated therewith and shall hold the defendant harmless and shall indemnify him for any liability arising therefrom.

7. Motor Vehicles:  The plaintiff shall retain all right, title and interest in the 2012 Nissan Juke and shall be solely responsible for all costs associated therewith and shall hold the defendant harmless and shall indemnify him for any liability arising therefrom.

The defendant shall retain all right, title and interest in the 2010 Mercedes C300 and the Harley Davidson 2007 Ultra Classic Motorcycle he shall be solely responsible for all costs associated therewith and shall hold the plaintiff harmless and shall indemnify her for any liability arising therefrom.

8. Bank Accounts and Stocks:  The parties shall each retain their own bank accounts and stocks free and clear of any claim by the other.

9. Retirement Assets:  The parties shall share equally in all retirement assets including the balance of the defendant's 401k account and his pension plan.   The outstanding loan balance shall not reduce the plaintiff's share of the 401k.

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.

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

10. Personal Property:  In accordance with the parties' stipulation, the plaintiff shall deliver to the defendant the following items:

a.  The mirror from the basement;

b. the pig in the kitchen;

c. the cameo pin;

d. his mother's Christmas ornaments;

e. his leather briefcase;

f. the woodchipper.

Except as set forth above, all other items in the possession of either party shall remain their sole property free and clear of any claim by the other.

11. Liabilities:  Each party shall be liable for his or her individual debts as listed on their respective financial affidavits.

The parties shall be equally responsible for the joint marital debt, except that the plaintiff shall be solely responsible for the window loan with Core Plus and she shall indemnify and hold the husband harmless therefrom.

12. Attorneys Fees:  Each party shall be responsible for their own attorneys fees.

13. Name Restoration:  The plaintiff's birth name of Philomena Marabello shall be restored to her.

Connors, J.

FOOTNOTES

FN1. Pending at the time of trial was plaintiff's motion for contempt, Motion No. 134.   On the day of trial the defendant who was behind in his contribution payment and payment of attorneys fees brought himself in compliance essentially rendering the motion moot..  FN1. Pending at the time of trial was plaintiff's motion for contempt, Motion No. 134.   On the day of trial the defendant who was behind in his contribution payment and payment of attorneys fees brought himself in compliance essentially rendering the motion moot.

Connors, Susan A., J.