Joseph Fogarty v. Jean Fogarty (2013)

CORRECTED MEMORANDUM OF DECISION (Corrections to Memorandum of Decision dated August 2, 2013.   Corrections made are re scrivener's errors in paragraphs entitled “Life Insurance” and “Alimony” under heading “ORDERS”)

The plaintiff husband initiated this action by way of a complaint filed on February 8, 2012, seeking the dissolution of the parties' marriage based upon irretrievable breakdown.   Both the plaintiff and the defendant were represented by counsel.   Both parties appeared and testified at trial.

Pursuant to standing orders, the defendant disclosed three experts prior to trial including James Gobes, on March 18, 2013, a pension and social security appraiser;  Thomas Boyle on January 2, 2013, a real estate appraiser;  and Dr. Amiram Katz on December 27, 2012, a neurologist.

At the request of both counsel this matter was scheduled for trial over a period of 2 days.   The trial commenced on March 25, 2013.   It quickly became apparent that because witnesses and exhibits had not been disclosed in a timely manner, the two days of trial requested by the parties would not be sufficient.   In addition to the originally scheduled trial days of March 25 and March 28, 2013, the parties were granted an additional trial date of April 5, 2013.   On that date, they were again granted additional trial dates of May 6 and May 9, 2013.   On May 9, 2013, they were granted an additional one half day of June 6, 2013 to complete evidence and make any closing arguments.   On June 6, 2013, this court denied any further requests for trial dates and briefs were ordered due on June 20, 2013.

The court has fully considered the criteria set forth in Connecticut General Statutes §§ 46b–81, 46b–82, 46b–84, and 46b–62 as well as the evidence, applicable case law, the demeanor and credibility of the parties and any witnesses and arguments of counsel in finding the facts and in reaching the conclusions reflected in the orders in this decision.

FACTUAL FINDINGS

This court finds the following by a fair preponderance of the evidence.   The court has jurisdiction of this matter and all statutory stays have expired.   At least one of the parties has continuously resided in the state of Connecticut for at least one year prior to the filing of this action.   The allegation in the complaint has been proven and is true.   The marriage of the parties has broken down irretrievably with no possibility of reconciliation.   Neither party has received state or local financial assistance during the marriage.

The plaintiff is sixty years of age and the defendant, whose original name was Jean Borland, is fifty-eight years of age.   The parties were lawfully married on June 1, 1985 in Warwick, Rhode Island.   They are the parents of one adult son.

The plaintiff is employed in the insurance/finance industry.   The defendant has an Associate's Degree in Business Administration and worked many years ago as an Office Manager and a Medical Assistant.   She was employed for just a brief time during the marriage when she became a full time stay at home parent.

This is a second divorce for the plaintiff.   The plaintiff purchased a home approximately one year prior to the parties' marriage for $65,000.00.   He spent an additional $7,500.00 in home improvements during that period.   In 1985, the parties married.   The defendant made major improvements to the home as well and at some point the property was refinanced in both of the parties' names.   The parties shared the home until 1987 when the family relocated to St. Louis, MO when the plaintiff received a job promotion.   The home was sold for $145,000.00 with equity of $80,000.00 realized.   As of the date of the parties' marriage, the plaintiff had $25,000.00 in a SIP account and was just days shy of a ten-year vesting with MetLife.   He also had $5,000.00 in checking and savings accounts.   The defendant had few assets at the time of the marriage but did receive an inheritance of $73,000 during the marriage which was designated for the child's college but was used toward household expenses.

The family resided in St. Louis for the next thirteen years.   They used the profit from the Rhode Island house to purchase a home in St. Louis and to furnish it.   In addition to the MetLife job where the plaintiff earned between $40,000 and $50,000.00 annually, he had a side landscaping business where he earned a net income of approximately $15,000.00 per year.

In February of 1988, the parties' son was born.   The child had some special needs, including auditory processing issues, and, as noted previously, the defendant cared for their child full time during much of this period.   She was also primarily responsible for paying the bills and the plaintiff would often criticize her for overspending.   During some of this period, the defendant homeschooled their son.   The parties agreed that many of their earnings were spent providing speech and language therapists and private schooling and tutoring for the child as well.   It was also during this period in St. Louis that the defendant unfortunately contracted Lyme Disease which has impacted her ability to work.   In addition, the defendant has a number of other health issues.

In January of 2000, the plaintiff was promoted to field claim director at MetlLife and the family relocated to Connecticut.   From that time forward, the marriage of the parties deteriorated.   The plaintiff credibly described the defendant as erratic and having mood swings and nagging behavior.   The defendant credibly described the plaintiff as abusive toward her and their son, punching holes in the walls, drinking to excess and physically assaulting her on at least two occasions.   In 2005, the plaintiff was arrested for assault but the defendant never pursued the case and the charges were dismissed.   The plaintiff obtained his own apartment at that time and from that date forward, he did not return to reside in the family home.

Despite these events, the parties maintained a sporadic but intimate relationship with one another, the plaintiff continued to financially support the family and he continued to financially maintain the family home.   As recently as 2011, it was the plaintiff's hope that the parties would reconcile, but the defendant did not reciprocate those feelings.   During this period, she became involved for a brief period with a third party.   It was at that time that the plaintiff determined that the marriage was over, began to date a colleague and decided to file for divorce.   The plaintiff is now cohabitating with his girlfriend and he shares household expenses with her.   The defendant has continued to reside in the marital home with their adult son.

There was extensive credit card debt that accrued during this period, which included their son's educational expenses, and the plaintiff agreed to take a $113,000.00 withdrawal from his SIP account to pay it off.   That withdrawal has created major tax liabilities for the plaintiff.   He gave the money to the defendant and with it she paid some credit card debt, some of their son's school expenses and a portion of her attorneys fees in this case.   Attorneys fees continued to accrue in this case after the defendant consulted with three attorneys and retained three other attorneys.   This was necessary because she believed the attorneys felt thwarted and frustrated by the plaintiff's “footdragging” with discovery.   The defendant has also borrowed $30,000 from their son's automobile accident trust account to pay additional fees to her present attorney.

The major assets of the parties include the marital home, the plaintiff's MetLife pension and some stock options.   With respect to the marital home, testimony entered regarding the value of the parties' home, both from the defendant's expert and from the plaintiff, himself.   Both parties contributed to any remaining equity in the marital home, through home improvements, gains realized from prior home sales, and money from the defendant's inheritance.

With respect to the plaintiff's pension, there was extensive testimony and exhibits entered concerning the various methodologies used in valuing pensions, all of which the court has considered.

This court has considered all of the factors set forth in Conn. Gen.Stat. § 46b–82 including but not limited to causes of the breakdown of the marriage, the ages of the parties, the length of the marriage and the employability and health of the parties.   In addition, this court has taken into account the monies spent by the parties and advanced from marital accounts by the court during the pendente lite period of this action;  the testimony of experts and others regarding pension valuation, Social Security considerations, the parties' respective living situations, and the fact that the plaintiff has continued to support his family for the lengthy period of separation.   Further, this court has also considered withdrawals from accounts toward the payment of debt and any inheritances received and expended as well as premarital contributions toward any assets.

For all of the foregoing reasons, the following orders are entered:

ORDERS

Dissolution. The marriage of the parties is dissolved on the ground of irretrievable breakdown.

Health insurance.   The plaintiff shall cooperate in providing COBRA or other comparable health insurance benefits for the defendant for so long as she is eligible and until the defendant qualifies for other employment provided insurance or Medicare.   The plaintiff shall pay 75% of the expense for so long as defendant is eligible.   He shall pay those benefits at the same time as the alimony payments are made.   Should the plaintiff continue to maintain the parties' adult son on his health insurance for so long as the son is eligible and does not have his own insurance, the plaintiff shall be credited with 25% of that expense to be deducted from his payment of the defendant's premium.

The plaintiff shall maintain his own health insurance at his expense.

Life insurance.   The plaintiff shall maintain life insurance available to him through his employment or privately obtained by him, sufficient to cover the alimony obligations but no greater than $350,000.00.   The plaintiff shall name the defendant as beneficiary of that amount life insurance.

Assets

Marital home.   The plaintiff shall quitclaim his right title and interest in the marital home to the defendant.   The plaintiff shall receive a credit of $30,000 from the equity in the marital home.   This amount shall be offset from the defendant's interest in the plaintiff's SIP account.

Alimony. The plaintiff shall pay to the defendant $1000.00 per week in alimony.   The order is modifiable as to amount only, by either party, upon a substantial change in circumstances, including, but not limited to, remarriage of the defendant or her cohabitation as defined by statute.   The plaintiff shall pay as additional alimony to the defendant, 20% of any gross bonus income, within thirty days of receipt.   The plaintiff's voluntary separation from employment prior to the plaintiff's eligibility for full social security benefits shall not be grounds for modification of this order and any severance package shall be includable as income.   Alimony shall terminate upon the death of either party.   The defendant shall have a safe harbor of $20,000 per year in earned income without being subject to modification by the plaintiff.

The parties shall exchange, on an annual basis, W–2s, 1099s and any other evidence of earned income within two weeks of receipt of that documentation.   The parties shall notify each other upon any changes in employment, including the plaintiff's retirement.   All alimony payments shall be made by direct deposit into the bank account of the defendant's choice.

Assets distribution

1. MetLife Pension.   The plaintiff shall transfer to the defendant by way of a Qualified Domestic Relations Order, 50% of his Metlife pension, valued from the date of the vesting of the pension to the date of service of the filing of the dissolution action.

2. SIP Account.   In order of priority, the following shall be paid from this account:

a.  Any state or federal taxes due to the state or federal government as a result of prior or present SIP withdrawals, spent toward joint family expenses.

b. $30,000 may be deducted by the plaintiff from the balance of the SIP account for his interest in the family home.

c. An amount not to exceed $30,000 shall be restored to the parties' son's trust account.

d. Any joint credit cards shall be paid from this account as well.   If there are no sums remaining in SIP, the parties shall divide any joint credit card expenses incurred prior to service of the dissolution action, 75% to the plaintiff, 25% to the defendant.

e. Any remaining sums shall be awarded to the plaintiff.

The SIP account shall be valued as of the date of judgment, with any gains or losses on that amount accruing from the date of judgment to the date of receipt by the defendant.   Any loans that were taken from this account shall not be considered in determining its value but shall be the plaintiff's responsibility to pay back.   Similar to the pension, both parties shall cooperate with the transfer of this asset by way of a Qualified Domestic Relations Order or other appropriate means.   Attorney Elizabeth McMahon shall prepare both QDROs and the cost shall be born by the plaintiff.

3. Stock Options.   The defendant shall receive 45% of any stock options that have vested as of the date of judgment.

4. Personal Property

a.  The defendant shall retain the contents of the marital home with the exception of family heirlooms from the plaintiff's family.   It is assumed by this court that after at least seven years of separation, the personal property of the parties has already been divided.

b. The defendant shall retain the Subaru Outback and the husband shall retain his vehicle and they shall both cooperate in making any necessary transfers to effect this order.   They shall each hold the other harmless on any expenses related to their respective vehicles and shall make timely payments on them when due.   They will cooperate in transferring whatever title is necessary to the other party.

Income Taxes, Tax Underpayment Liability and Dependency Exemption

The plaintiff shall file his 2012 federal and state tax returns as “Married Filing Separately.”   He shall be entitled to take the parties' son as his dependent for purposes of his 2012 federal and state tax returns.   Beginning with the parties' 2013 federal and state tax returns, the defendant shall be entitled to take the parties' son as her dependent for purposes of her 2013 federal and state tax returns and any tax returns thereafter, if the law so allows.

In the event that, with respect to any jointly filed income tax returns of the parties, there has been an underpayment, the plaintiff shall pay any such underpayment, including all interest and penalties, and he shall assume liability and indemnify and hold the defendant harmless thereon.   This obligation shall be considered another form of spousal support and shall not be dischargeable in bankruptcy.

Attorneys fees.   The plaintiff shall contribute $10,000.00 toward the defendant's attorneys fees.

SO ORDERED.

BY THE COURT,

Prestley, J.

Prestley, Linda Pearce, J.