Judith A. McRae v. Jonathan C. McRae (2013)

MEMORANDUM OF DECISION

This dissolution of marriage action was commenced by the plaintiff, Judith A. McRae, against the defendant, Jonathan C. McRae, by summons and complaint dated February 26, 2013, bearing a return date of March 12, 2013.   The case was tried before the court on August 13, 2013.   The plaintiff was represented by Attorney Lorraine D. Eckert and the defendant was represented by Attorney William E. McCoy of Heller, Heller and McCoy.   The parties stipulated to the custody and visitation issues and several of the property issues leaving the court with the determination of alimony, allocation of the debt associated with the marital home, allocation of the child dependency exemptions and attorneys fees.   The court heard testimony from both parties.   No other witnesses were called.   Several exhibits were introduced into evidence.

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 Judith A. Hansen married the defendant on October 11, 2009 in Canterbury, Connecticut.   The plaintiff continuously resided in Connecticut for at least one year before this action was commenced.   The parties have two minor children, issue of the marriage, to wit:  Connor C. McRae, born June 20, 2006 and Kendall G. McRae, born July 16, 2010.   The plaintiff is not currently pregnant.   Neither the parties nor their children have been the recipients of state or municipal assistance during the marriage.   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 is 35 years old, has a high school education and is in generally good health.   She has worked part time throughout the parties' marriage at Walmart.   The plaintiff presently earns a little in excess of $14 per hour and works 34 hours per week.   The plaintiff's financial affidavit reflects a net weekly income of $306.39 after her standard deductions.   She has been employed with Walmart for the past 14 years.   She contends that she cannot work more hours due to scheduling issues at Walmart and the need for care for the minor children.   The plaintiff's mother cares for the children while she works.   As a result of this arrangement, the parties have not had to incur any child care expenses.   The parties' daughter will be enrolled in full day kindergarten in September of 2014.

The plaintiff currently resides in the marital home with the parties' children.   The defendant vacated the marital home in March of 2013 and moved in with his mother until she sold her condominium at which time he moved in with a friend for approximately one month until his mother purchased another condominium.   Both the mother's initial condominium and the defendant's friend's residences were two-bedroom units, essentially precluding the defendant from having the children for overnight visitations.   He presently resides with his mother in a three-bedroom unit and hopes to secure his own residence in the near future, but contends that he cannot financially afford to do so while paying alimony to the plaintiff.

The marital home is presently in foreclosure.   Both the note and mortgage on the property as well as the deed are solely in the defendant's name.   Neither party introduced an appraisal or any other documentary evidence concerning the value of the home.   The only testimony concerning the home came from the defendant who testified that he has not made a mortgage payment since December of 2012 and that he does not believe there is any equity in the home.   The defendant seeks to have both parties be equally responsible for any deficiency judgment that may result from the foreclosure action;  whereas, the plaintiff proposes that the defendant be solely responsible for any deficiency.

The defendant is 37 years old and in generally good health.   He has a Bachelor's degree from Northeastern University and is employed with Frito Lay as a Rolling Sales Representative.   He works approximately 55 to 60 hours per week and receives a base salary and commission.   According to his W2s he earned gross wages of $67,415.73, $62,602.51 and $58,663.76 in 2012, 2011 and 2010, respectively.   The defendant's financial affidavit shows a net weekly income of $579.62 after deductions and repayment of his 401k loans.

The parties own a 2002 Ford Focus and a 2008 Chevrolet Trail Blazer.   Both vehicles are owned outright.   They have stipulated that the plaintiff will retain ownership of the Trailblazer and the defendant the Focus.

The parties have stipulated that they will each keep their own retirement assets free and clear of any claim by the other.   The plaintiff has a 401k and stock plan with Walmart that is valued at $22,798.   Approximately $8,000 was premarital.   The defendant's 401k has an approximate balance of $6,200.   He has two loans against it.   One that he pays at the rate of $68 per week and will be paid off in December of 2013.   According to his financial affidavit, he pays back both loans at the rate of $116.95.   Thus, the second loan is being paid back at the rate of $48.95 per week.   The defendant also has a vested interest in a pension plan.   The parties have stipulated that the marital portion is valued at $10,000.   Additionally, the defendant owns stocks valued at $300, which he purchases at the rate of $25 per week.

The parties' marriage broke down as a result of the parties growing apart.   The defendant worked days and the plaintiff worked nights in order to care for the children.   As time went on they spent little time together and were not good communicators.   The plaintiff contends that the defendant was verbally abusive and referred to her in a derogatory manner.   The defendant admits to this behavior, apologizes for it, but claims that it was mutual.

The court hereby enters the following orders, many of which are by stipulation of the parties:

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. Custody:  The parties shall have joint legal custody of the minor children who shall principally reside with the plaintiff.   The pendente lite parenting plan is incorporated herein as a final order.   The defendant shall complete the parenting education class within 60 days of the date of judgment.

Pursuant to the stipulation of the parties, they shall each continue to provide dental insurance for the minor children and the defendant shall continue to provide medical insurance for the minor children as long as it is available to him at reasonable cost.

3. Child Support:  The defendant shall pay to the plaintiff the sum of $260 per week as child support on behalf of the two minor children.   Said sum is in substantial compliance with the State of Connecticut Child Support and Arrearage Guidelines.

4. Extracurricular Expenses:  The parties stipulated that they will mutually agree upon and share equally in the cost of all extracurricular activities of the minor children.   Neither party shall unreasonably withhold their consent.

5. Post-Majority Educational Support Orders:  Pursuant to the stipulation of the parties, the court retains continuing jurisdiction regarding post-majority educational support for the minor children pursuant to General Statutes § 46b–56c.

6. Dependency Exemption:  The plaintiff shall claim the minor child, Kendall, as a dependent for state and federal income tax purposes and the defendant shall claim the minor child, Connor, in all years.   When one child may no longer be claimed, the parties shall alternate the remaining exemption with the plaintiff claiming the child in the first of such years.

7. Alimony:  The plaintiff seeks an award of alimony of $150 per week for the period of two and a half (2.5) years.   The defendant proposes an award of no alimony.

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.”  “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).

In this matter the court finds that both parties were at fault for the breakdown of the marriage.   This is a very short-term marriage involving parties who are of similar age and health.   The defendant has a higher level of education than the plaintiff and has been traditionally the one who financially supported the family.   The defendant has the children every Wednesday and every other Sunday from early in the morning until late evening.   When school is in session, he has their son on Wednesday from the time school gets out until late evening.   The defendant is also entitled to have the children an additional evening during the week, but due to his schedule, this right has been sporadically exercised.   Nevertheless, the defendant contends that the plaintiff should be able to work additional hours to supplement her income.   Even if the plaintiff has the ability to work additional hours, the amount she would earn would likely be outweighed by the costs of child care.   She has indicated that her mother would not be available for additional times.   The parties' youngest child will be enrolled in school full time in September of 2014.

Under the facts of this case and after consideration of the statutory criteria and the net income of the parties, the court orders the husband to pay to the wife the sum of $100.00 per week as periodic alimony through August 31, 2014 at which time said alimony shall terminate.   Said alimony is non-modifiable upwards and is non-modifiable as to term.   It shall terminate upon the death of either party or the remarriage of the wife.

The court's order is intended to provide the plaintiff with continuing support in the short term while the youngest child is not enrolled in school full time.

As was noted by our appellate court in Marmo v. Marmo, 131 Conn.App. 43 (2011), “the traditional purpose of alimony is to meet one's continuing duty to support ․ [C]ourts have begun to limit the duration of alimony awards in order to encourage the receiving spouse to become self-sufficient.”  (Citation omitted;  internal quotation marks omitted.)  Roach v. Roach, 20 Conn.App. 500, 506, 568 A.2d 1037 (1990).  “[U]nderlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency ․ A time limited alimony award generally is for rehabilitative purposes but other reasons may also support this type of alimony award.”  (Citation omitted;  internal quotation marks omitted.)   Ippolito v. Ippolito, 28 Conn.App. 745, 752, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).  “Another valid purpose for time limited alimony is to provide interim support until a future event occurs that makes such support less necessary or unnecessary ․” See also, Langley v. Langley, 137 Conn.App. 588 (2012) (discussing time limited alimony).

8. Marital Residence:  The defendant shall retain all right, title and interest in the marital home located at 21 Totem Lane, Griswold, Connecticut and he shall be solely responsible for all costs associated therewith including any deficiency judgment associated with the pending foreclosure proceeding, except that the plaintiff shall be responsible for the utilities incurred as a result of the plaintiff's occupancy.

The plaintiff shall continue to have exclusive possession of the marital home for so long as she may legally remain, or until such time as she secures another residence for her and the children as set forth above.   The plaintiff shall be solely responsible for any utility bills that are incurred as a result of her occupancy of the marital home and she shall hold the defendant harmless and shall indemnify him for any liability arising therefrom.

9. Health Insurance:  The parties shall each be responsible for their own health insurance.

10. Motor Vehicles:  The plaintiff shall retain all right, title and interest in the Chevrolet Trailblazer 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 Ford Focus and 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.

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

12. Retirement Assets:  The parties shall each retain their own retirement assets free and clear of any claim by the other.

13. Personal Property:  The parties shall attempt to divide their personal property to their mutual satisfaction.   In the event they are unable to do so, they shall submit to binding arbitration and be equally responsible for the cost thereof.

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

15. Life Insurance:  Both parties shall attempt to secure term life insurance in the amount of $100,000 naming the other as trustee for the benefit of the minor children if it is available at a reasonable cost.   Such insurance shall remain in effect until such time as the youngest child reaches the age of 23 or there are no post-secondary educational support orders in effect.

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

Connors, J.

Connors, Susan A., J.