Cynthia L. Costner v. Todd D. Costner (2013)

MEMORANDUM OF DECISION

This dissolution of marriage action was commenced by the plaintiff, Cynthia L. Costner, against the defendant, Todd D. Costner, by summons and complaint dated November 28, 2012 and bearing a return date of January 8, 2013.   The case was tried before the court on August 22, 2013.   The plaintiff was represented by Attorney Dominic S. Piacenza and the defendant was self represented.   The parties stipulated to all issues except alimony and the plaintiff's share of equity from the marital home.   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 Cynthia L. Glaude, married the defendant on October 19, 1985 in Norwich, Connecticut.   The plaintiff continuously resided in Connecticut for at least one year before this action was commenced.   The parties have two children, issue of the marriage, to wit:  Tiffany Costner, born May 18, 1990 and Corey Costner, born July 13, 1995.   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 parties met while attending high school and married five years later.   They were both approximately 21 years of age at the time of their marriage.   Both are high school graduates with no formal postsecondary education.   At the time of their marriage the plaintiff was employed as an Assistant Manager in a retail clothing store.   The defendant was working in a tire store.

Presently, the plaintiff is 49 years old and is employed as a Collections Manager for Core Plus Federal Credit Union where she earns $22.49 per hour.   The plaintiff is a cancer survivor.   She was first diagnosed with a very rare form of cancer in 2002.   In 2008 she had a piece of her lung removed and in 2010 she underwent the removal of lymph nodes in her chest as the cancer had spread.   She is currently in remission and finished her last round of medication and treatment in the autumn of 2012.   She is very concerned about her prognosis.   She testified that she has been very fortunate as it is her understanding that individuals with this type of cancer generally survive only five years post diagnosis.

The defendant is 50 years old and underwent a right hip replacement in February of 2013, but is otherwise in generally good health.   There was no evidence that his hip in any way prevents him from being able to work at the present time.   He did argue, however, when addressing the alimony issue that he is concerned that his hip may prevent him from being able to work in the future.   He is presently unemployed and last worked in 2012 performing energy audits earning approximately $45,000 per year.

The parties jointly own the marital home located at 8 Route 117, Preston, Connecticut.   The parties purchased the marital home from the defendant's parents.   The home originally belonged to the defendant's grandmother.   The plaintiff submitted expert testimony of Dennis Slopak, a licensed residential real estate appraiser who opined that the value of the marital home is $165,400.   The defendant's parents hold a mortgage on the home.   There was conflicting testimony regarding the amount owed on the mortgage.   It is clear, however, that in 2008 the defendant's father graciously told the plaintiff to focus on her health and not worry about making the mortgage payments at that time.   Thus, the parties made no payments on the mortgage in 2008 and made only two payments in 2009.   The parties have not made any payments since 2009.   Interest has continued to accrue on the outstanding principal.   As of March 1, 2013, $60,951.27 was owed on the mortgage.   The defendant unsuccessfully sought to introduce evidence to substantiate his claim that the amount owed on the mortgage had increased due to the accrual of additional late fees and attorneys fees incurred by his parents.   Though the parties dispute what is owed on the mortgage, the real crux of the dispute is the defendant's belief that the value ascribed to the home by the appraiser was overstated.   He unsuccessfully attempted to cross examine Mr. Slopak regarding his concerns that Mr. Slopak did not take into account the current condition of the property and repairs that need to be made to the property;  specifically to the roof.   The witness testified that adjustments were in fact made for the condition of the home.   In any event, the plaintiff seeks an award of $50,000 from the marital home equity and the defendant seeks an order awarding her $32,000.   There was no testimony regarding any gift of equity from the defendant's parents.   The testimony clearly established, however, that the parties have resided in the marital home over the past four years having made no payments to the defendant's parents.

With regard to the breakdown of the marriage, the plaintiff testified that her illness put a tremendous stress on the marriage.   There was conflicting testimony from the parties regarding how they reacted to the situation.   The plaintiff testified that while going through her cancer treatment she felt overwhelmed and physically exhausted and did not feel that the defendant did enough to alleviate any of the household burdens.   To the contrary, the defendant testified that he was extremely supportive.   Both parties appeared genuine in their testimony.   The court is cognizant of the stress that such a tragic situation can place upon a family and ascribes no greater degree of fault to either party.

The court enters the following orders, all of which are by stipulation except for those pertaining to alimony and the plaintiff's share of the equity in the marital home:

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. Alimony

The plaintiff seeks an award of alimony of $1 per year and no alimony to the defendant.   The defendant seeks an award of either no alimony to either party or an award of $1 year to each.

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.”  “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 does not ascribe more fault to one party or the other for the breakdown of the marriage.   This is a very long-term marriage involving parties who are of similar age, station, occupation (when they are both gainfully employed), but not health.   Clearly the plaintiff's medical history is cause for concern.   The defendant testified that he too is concerned about his ability to work in the future due to his hip replacement.

Under the facts of this case and after consideration of the statutory criteria, the net income of the parties, and the proposed orders of each of the parties, the court orders that each party pay to the other $1 per year as periodic alimony modifiable only in the event that the party is unable to work on a full-time basis due to medical reasons.

3. Real Estate

The husband shall continue to have exclusive possession of the marital home.   The wife shall quitclaim to the husband all of her right, title and interest in the marital home located at 8 Route 117, Preston, Connecticut.   The husband shall be solely responsible for all costs associated therewith, except for the HELOC for which the parties stipulate they will be equally responsible.

The husband shall pay to the wife the sum of $40,000 within 180 days of the date of the judgment.   Said sum represents her share of the marital equity taking into account all of the statutory criteria and the equitable factors including the parties' ability to have lived in the marital home over the past four years making no mortgage payments.

The husband shall refinance the note and mortgage within 180 days of the date of the judgment to remove the wife from the obligations.

The Court will retain jurisdiction over the real property for the purpose of effectuating the orders that enter herein.

4. Retirement Assets

The parties shall share equally in all retirement assets valued as of the date of the dissolution together with any appreciation or depreciation thereon.   The parties have represented that all retirement assets may be transferred by way of a rollover.   However, the court will nonetheless retain jurisdiction over the retirement assets for the purposes of effectuating the 50/50 division as contemplated by the parties.

5. Motor Vehicles

The wife shall retain all right, title and interest in the 2004 Honda Accord.   The husband shall retain all right, title and interest in the 2009 Ford F150 pick-up truck.   Each shall be solely responsible for all costs associated with their respective vehicles and shall indemnify and hold the other harmless therefrom.

The parties shall transfer title to the vehicles as ordered above within thirty (30) days of the date of judgment.

6. Bank Accounts

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

7. Debts

Except for the HELOC for which the parties will be equally responsible 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.

8. Personal Property

The parties have stipulated that the plaintiff may retrieve the belongings listed on schedule A and attached to her proposed orders within 30 days of the date of the judgment.

With regard to all other personal property, each shall keep free and clear of any claim by the other that property which is currently in his or her possession.

9. Medical Insurance

Each party shall be solely liable for his or her own medical insurance and unreimbursed medical expenses.

10. Post–Majority Educational Support

The court accepts the parties' waiver of the entry of a post-majority educational support order.

11. 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.

Connors, Susan A., J.