Cynthia Bainer v. Todd Bainer (2013)

MEMORANDUM OF DECISION

This dissolution of marriage came before the Judicial District of New Haven at New Haven by return date of October 18, 2011.   The court tried the matter over two days, October 7 and 8, 2013.   At trial, the plaintiff was represented by counsel.   The defendant, a licensed attorney in the state of Connecticut, represented himself in the trial.   At issue in the matter were orders of child support, alimony, an equitable division of the marital estate and attorney fees.

The court has carefully considered the statutory criteria and relevant case law for the granting of a dissolution of marriage, Gen.Stat. §§ 46b–40, 46b–56, 46b–56c, 46b–62, 46b–80, 46b–81 and 46b–82.

The following facts are found based upon the credible evidence before the court.

The court has jurisdiction over the marriage inasmuch as both parties have resided continuously in the state of Connecticut for more than one year before the bringing on this action.

The plaintiff and the defendant met at their work place in 1988.   The plaintiff was the receptionist and the defendant was an associate in a New Haven law firm.   After that law firm split up, the plaintiff came to work for the defendant and his partners at their newly formed law firm.   Their professional relationship first expanded to a friendship and then became intimate.   The parties commenced their intimate relationship in 1990 while each was married to other spouses.   The parties married on October 9, 1995 after living together for five years.   At the time of their marriage they already had one child together, who is issue of the marriage, Jessica who is under the age of 23 years and now attends Southern Connecticut State University.   The cost for this academic year's tuition and fees is $8,981.   Subsequent to their marriage their second child was born, Victoria, on November 25, 1995.   She will be 18 years old next month.   She is a student at the University of Connecticut.   The estimated cost for this academic year is $23,744.   There are no other children that are issue of the marriage between the parties.   The defendant is the father of an older child from his prior marriage.

No testimony was elicited as to the plaintiff's age or health.   From a pension document put in evidence the court can find that her 65th birthday is in April 2027 and therefore that she was born in May 1962 and is presently 41 years old.   She appeared to be in good health and there is no evidence that she has any condition that interferes with her ability to work on a full-time basis.   Her level of education is unknown.   Her work experience is as a law firm receptionist and law firm bookkeeper, which are the roles she undertook for her husband's law firm.   She obtained employment with the state of Connecticut Support Enforcement Services in April 1997.   At the time, the defendant's business was slow and the parties were paying too much money ($1,000 per month) for premiums for health insurance that was not as good as that offered by the State of Connecticut.   The plaintiff has remained in her employment, presently working at the central office.   Both of the parties, their children and the defendant's child from his first marriage are covered on the plaintiff's health insurance.   Currently she earns $65,090 gross per year.

The defendant is a licensed attorney in Connecticut.   He attended Loomis Chafee in his high school years.   By inference from testimony, the court finds that he progressed through college and law school thereafter.   His health is not presently good.   He is between surgeries, having had three surgeries already since June 2012.   The June 2012 surgery was to repair an umbilical hernia.   Thereafter, he had surgery in October 2012 for the repair of a hiatal hernia.   Unfortunately, that was not a smooth procedure.   Shortly after the surgery, he required a surgical repair of a groin hernia.   During the post-surgery period he was setback physically.   In convalescence he experienced a prolonged period of eating difficulties, which resulted in him dropping three sizes in his clothing.   Later this month, the defendant is consulting with another surgeon as to the likelihood of a procedure to repair the tightness in his esophagus without undoing the benefit of the initial repair of the hiatal hernia.   Presently, the defendant is convalesced and able to function generally.

The defendant has also struggled with alcohol abuse, the status of which is unknown to the court.   His abuse of alcohol was a precipitant of the unraveling of the parties' marriage.

Over the years of the parties' relationship, the defendant has been the principal economic provider for the family needs.   He was engaged in the practice of law, as a small firm partner and then as a solo practitioner.   His office was on the first floor of the building the parties lived in, which he owned.   In December 2001 the defendant conveyed his interest to the plaintiff.   While he gifted it to her via a note on the parties' Christmas tree that year, his reasons were also strategic:  he placed all of the family assets in the plaintiff's name to insulate the family proactively from his creditors.

The defendant did not secure any of his earnings for retirement.   As a result, he approved of the plaintiff maximizing her pre-tax retirement savings in a 457 account through her employment.   The present value of that account is $145,298.92.   The entire sum has been saved during the marriage.   The plaintiff also has a defined benefit pension plan with the state of Connecticut.   Presently, based upon the plaintiff's 16 years and 3 months of service and her three highest paid years to date, her payment at 65 years of age would be $13,896.00 per year.   This non-ERISA qualified plan is divisible if ordered by the court.

While his practice was varied, the defendant derived a significant portion of his income from personal injury law work.   As self-described, he had very lean and very fat years, the latter resulting in million dollar “7 figure” income (gross or net was never established) to $90,000 annual income in a lean year.   The years fluctuated.   However, commencing in 2008, the parties began experiencing sustained significant financial pressures.   In 2010 the defendant earned $132,119.00 from his business.

In the summer, 2011, the defendant was visited at his office by representatives of the Internal Revenue Service, asserting he owed substantial federal taxes for several tax years.   He has received written notice of the claimed amounts due.   The matter is civil in nature, no criminal charges have been levied to the date of this hearing.   The defendant has retained counsel who is attempting to negotiate a tolerable arrangement settling the matter out.   There is no resolution to this issue.   To the date of the closing of this trial, the Internal Revenue Service has not looked to the plaintiff for contribution to the taxes asserted due.

One other stressor on the defendant's practice was that the Internal Revenue Service levied every single one of the defendant's then existing client files.   The result of this was that his clients left him rather than be involved in the matter.   His practice which had been struggling at this point, largely dried up.

No single event led to the breakdown of this marriage.   The parties became involved with each other as a result of their mutual infidelity to their prior spouses.   The filing of this action by the plaintiff was not fueled by the defendant's sexual infidelity alone.   Instead, the tensions in the home from insufficient income by the defendant to satisfy the family lifestyle as they had lived it, arguing with sharp tongues by both parties, alcohol fueled berating of the plaintiff and the children by the defendant and the IRS's actions against the defendant led to her filing of this dissolution of the marriage action.   In 2008 the parties had a particularly nasty moment when the defendant came home drunk and lied about where he had been.   The plaintiff slapped and punched him.   The parties' was a complicated relationship:  the plaintiff relied on the defendant from early on in their relationship which reliance the defendant enjoyed;  this was consistent with his view of himself as someone who takes care of those around him.   These two people worked very hard for their family.   While both were active and involved parents, the plaintiff shouldered the majority of that responsibility.   Perhaps it is easier for the parties to ignore the difficulties in their relationship when money was flowing.   With debt streaming in and not enough income to keep up with the debt, things became increasingly more difficult.   The defendant behaved boorishly—he was rude, obnoxious and insulting to those in his family, particularly when he had been drinking alcohol.   Ultimately the defendant shoulders most of the responsibility for the breakdown of the marriage.

Sometime during this period, the defendant was involved in a motor vehicle accident that has resulted in a civil suit against him.   Arising out of the accident, he was charged with driving under the influence.   He was acquitted of the charge.   The fact of the arrest is restated here because there was two days of newspaper coverage regarding it in The New Haven Register, the newspaper of general circulation in the geographic area the defendant practices law.   The defendant believes this was not helpful to the health of his law practice.   The civil action remains unsettled;  there is insurance coverage for the claim.

Early in this action the defendant was self-represented (although he had occasional representation) and the plaintiff was represented by counsel.   For the better part of a year, these parties functioned without the extreme animosity that was present at the trial.   In the end of December 2012 to the beginning of January 2013, their relationship post-dissolution hit a low point.   Initially the defendant filed for an ex parte restraining order and then the plaintiff did.   The defendant withdrew his when he realized he had misapprehended certain actions that he had wrongly attributed to the plaintiff.   The plaintiff pursued her restraining order as well as a motion for exclusive possession of the property which comprised both the marital home as well as the defendant's office.   The court, after a hearing in which both issues were heard at the same time, granted exclusive possession of the home to the plaintiff.   Regarding the restraining order, the plaintiff acknowledged more than once that she was not in physical fear of the defendant.   However, the court found that after considering the most recent changes to Gen.Stat. § 46b–15, “this ongoing, and one could argue relentless exchanges, and the court credits the plaintiff's testimony that they are, for most intense [sic] and purposes, being initiated by the defendant.   His anger, his issues in life, whatever they are right now, he is presenting as someone who poses a threat.   He's intimidating her.   He tried to do it on the witness stand.   I am going to make a finding that there's a preponderance of the evidence ․ I'm going to grant the restraining order ․” That restraining order was granted for one year from January 9, 2013.

The court, in entering the restraining order recognized that putting the defendant out of his office may have an impact on his ability to earn income.   The court stated, “[a]nd I am entering these orders fully aware of what potential consequences could be occurring regarding the financial aspect of this [sic] parties, but that's how concerned I am about these parties.”

The defendant testified, without challenge, that the plaintiff did not allow Comcast in the house to remove the equipment in his office space necessary for transferring his office phone number to him.   This phone number and his office were the way that the defendant's former clients or any referrals would be able to find him.

The defendant has virtually no income.   He lives with a woman (who he became involved with after the filing of this dissolution of marriage action by the plaintiff) who was called to testify at trial as to her financial contributions to the defendant.   She provides all of his shelter and his personal expenses at this time, including transportation as needed, medical expenses, clothing and food.   She also has paid for him to go on vacation with her.   She does expect the defendant to pay her back once he is earning income.   She believes that she has expended between $30,000 and $35,000 on his behalf.   There are no notes signed by the defendant though she expects to be reimbursed at some point.

The defendant has applied for work as an attorney and in the insurance field as well.   He has declined to look for work out of his area of expertise.   He has been a member of the bar since 1982.   The defendant presented in court as anxious, angry and verbally volatile.   Notwithstanding his adversities, the defendant must regain his emotional health, get himself on his feet and find a way to earn income, whether he rebuilds his practice or takes on something else.   The plaintiff asks the court to find a present earning capacity in the defendant of at least $120,000, his income in 2010.   She points to the income the defendant has made previously as both parties acknowledged, and as evidence by the Internal Revenue Service claims.   Based upon the facts found by this court from the evidence provided, such a finding urged by the plaintiff cannot be made.   There is simply insufficient evidence in the record to support a present ability of the defendant to earn the income claimed by the plaintiff.

The plaintiff is unable to afford the mortgage payments on the marital home.   It has not been paid since December 2012.   The mortgage is in default.   The plaintiff is participating in foreclosure mediation.   In her claims for relief the plaintiff seeks to sell the home and retain all of the net proceeds.   She estimates the value of the home is $380,000 with a $260,000 unpaid balance on the mortgage.   The court will accept these values in the absence of any contrary evidence.   The defendant would prefer the house go by foreclosure sale, optimistic that it would procure just as good a price and save the cost of a realtor's commission.

The plaintiff seeks an order that she own all of the marital assets of any substantial value and receive $1.00 per year alimony.   In the alternative she is willing for some split of the assets if she receives a substantive alimony order based upon the court imputing a specific earning capacity to the defendant as discussed above.

Both parties have contributed significantly to the acquisition of the marital assets.   The defendant is a bit older than the plaintiff, and while better educated, is in worse health.   While the plaintiff has more stable employment than the defendant, undoubtedly his employment will improve as his physical and emotional state stabilizes.   The prognosis of his ability to earn anywhere near what he used to, at the high or low end, is not clear.   As found earlier, the defendant is substantially more responsible for the breakdown of the marriage.

Both of the parties' minor children are in college.   While both parties express a desire to contribute to the payment of those expenses, to date only the plaintiff has made payments and undertaken loans.   Because of her poor credit, she has not been able to qualify for all of the loans she has desired to contribute to the college expenses of the parties' two children.

The IRS asserts that the defendant owes $341,817.36 in taxes, penalty and interest for tax years 2003, 2004, 2005, 2006 and 2010.   The defendant has other substantial liabilities as shown on his financial affidavit.   He has no other assets of consequence.

The plaintiff is the owner of two Volvo automobiles, a 2009 Volvo S60 and 2011 Volvo C70, as shown on her financial affidavit.   The latter is her principal means of transportation.   The former was purchased for one of the parties' daughters.   Both parties have contributed to the purchases of the vehicles.   The plaintiff's values are based on dealer trade, not private sale.   The court has insufficient evidence to determine their true value.

The parties have agreed to mediate with respect to the remaining pieces of furniture that they have not yet divided to their mutual satisfaction.   Neither party has asked the court to order any relief regarding furnishings or personal effects.  (The plaintiff's claims for relief ask for a Banister's clock but her counsel stated at argument that they would handle the matter without order.)

The plaintiff has borrowed money from her sister ($6,000) to make ends meet pendente lite and to meet the college expenses ($2,950.00) of the parties' children.   She has borrowed $3846.00 from her life insurance policies (as shown on her financial affidavit), and has credit card indebtness of $4,000 that she pays down on.   The Chase credit card had originally covered $11,900 of the oldest child's education.   The plaintiff has paid it down substantially.   The defendant has not contributed to the marital house, car payments or college expenses since December 2011.

The plaintiff owes her attorney $10,835.51 in fees and costs.

Having considered all of the statutory criteria and relevant case law, the court orders:

1. Dissolution of the marriage.

2. Custody of the minor child who turns 18 on November 2013 to the mother.

3. No child support is ordered for the month given the income circumstances of the defendant.

4. The mother shall keep the minor child on her health insurance until the child's date of majority.   The defendant's health insurance no longer is required to be covered by the plaintiff.   He is entitled to COBRA at his cost.

5. The property at 71 Cedar Street, Branford, CT shall be immediately listed for sale by the plaintiff.   The plaintiff alone shall determine the listing price and contract price to accept for sale.   The net proceeds, defined as the proceeds after the costs of closing, real estate taxes, conveyance taxes and fees, a reasonable attorney fee for the closing, a realtor's commission and payment of all outstanding encumbrance debt necessary to the sale of the property, shall be divided 60% to the plaintiff and 40% to the defendant.   The defendant shall provide a release of his lis pendens to the closing attorney for the sale of the premises.   Repairs (items over $100 each) for sale purposes shall be split on the same basis provided both agree on the repairs.   Agreement shall not be unreasonably withheld.   The court retains jurisdiction over the real estate provisions for their effectuation in accordance with these orders.

6. The defendant shall be the owner of 40% of the plaintiff's defined benefit state of Connecticut pension valued as of the date of the filing of these orders or the date closest thereto required by the plan administrator, by domestic relations order.   The defendant shall be responsible for the costs of the drafting of that order.   The court retains jurisdiction over the domestic relations order for the purposes of effectuation of these orders.

7. The defendant is entitled to 38% of the plaintiff's 457 deferred compensation plan valued as of the date of the filing of these orders, with all gains and losses thereon until the date of transfer.   Transfer shall occur by whatever means required as a matter of law for a transfer to a pre-tax fund for the defendant.   The court retains jurisdiction over this for transfer in accordance with its orders.

8. The defendant shall pay the plaintiff $1.00 per year alimony for a period of fifteen years or until the plaintiff's remarriage or the death of either party, whichever shall first occur.   This order is not modifiable as to term.

9. The defendant shall pay $5,500 of the plaintiff's $10,835.51 in attorneys fees at the rate of $100.00 per month for one year and $200.00 per month thereafter until paid in full.   The first payment shall be made on December 1, 2013.

10. So long as there is an alimony obligation (including $1.00 per year), the parties shall exchange W–2, K–1s and 1099s by February 15 yearly and 1040 returns within 5 days of filing yearly.

11. The plaintiff shall be the sole owner of the two Volvo automobiles and shall indemnify and hold the defendant harmless on the same.

12. The plaintiff shall be the sole owner of the three life insurance policies on her financial affidavit.

13. No alimony is ordered for the defendant.

14. Each party shall be solely responsible for his/her own debt and hold the other harmless on the same.

15. The court retains jurisdiction over the issuance of educational support orders, finding that the parties would have provided for the same, within their means, if they remain an intact family.   The court declines to enter an educational support order presently based upon the finances of the parties and being unaware of the other financial resources for the bills pursuant to the statute.

16. Each party shall be the sole owner of assets, not ordered above, that are in their respective names solely free and clear of any claims of the other.

17. Each party will cooperate in the execution of (and sign) such paperwork presented by the other for the effectuation of these orders.

Munro, J.

Munro, Lynda B., J.