Leigh Mangino v. Joseph Mangino, Jr. (2013)

MEMORANDUM OF DECISION

This dissolution of marriage action was commenced by the plaintiff, Leigh Mangino, against the defendant, Joseph Mangino, Jr., by summons and complaint dated January 31, 2013, and made returnable to this court on February 5, 2013.   The case was tried before the court on November 18, 2013.   The plaintiff was represented by Noah Eisenhandler, Esq. The defendant was represented by Benjamin Gettinger, Esq. The court heard testimony from both parties and numerous exhibits were entered into evidence.

Upon careful consideration of the evidence presented and the pertinent statutory law, in particular General Statutes §§ 46b–82 (alimony) and 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 and the defendant were married on May 7, 2000, in East Haven, Connecticut.   The plaintiff continuously resided in the State of Connecticut for at least one year before this action was commenced.   All statutory stays have expired.   The court has jurisdiction over this matter.

II

Marital and Family History

The parties have been married for thirteen years.   This is the second marriage for both;  their first marriages each ended in divorce.   There are no minor children issue of the parties' marriage to one another.   The plaintiff has an adult daughter from her first marriage.   The defendant has four adult sons from his first marriage.   The plaintiff is not currently pregnant.   The parties did not receive state assistance during the course of their marriage.

The parties resided in Wallingford, Connecticut in a house owned by the defendant's father.   The defendant paid all household expenses, made and paid for repairs to the home and tended to the landscaping.   He built and paid for an addition to the home around 2003.   When the defendant had extra money available, he also paid rent to his father.   At the time of trial, the defendant was paying rent to his father in the approximate amount of $1,000 every three months.   In November 2012 the parties separated and the plaintiff moved in with her daughter, son-in-law and young granddaughter in their home in Bethany, Connecticut.   Living arrangements were tight and the plaintiff soon moved out of her daughter's residence and into the home of a male friend, Jerry Nero, in New Haven.   Soon after moving in with Mr. Nero, the two began dating and Mr. Nero is now the plaintiff's boyfriend.   Mr. Nero provides the plaintiff with rent-free shelter and pays for the majority of her daily living expenses.   The defendant continues to reside in his father's Wallingford property with one of his adult sons.

The plaintiff is 48 years old and in good health.   She holds a high school degree and has been employed in a variety of positions, including a nail technician and, most recently, as a caregiver for the elderly.   She was unemployed when she married the defendant.   At the outset of the parties' marriage, the plaintiff cared for the defendant's four sons, three of whom were minors at the time.   The defendant's adult son and two minor sons lived with the parties full-time;  the defendant's fourth son lived primarily with his mother, but also spent time at the parties' Wallingford home.   The plaintiff's teen-aged daughter lived with the parties for a period of time as well.   The plaintiff cooked and cleaned for all of the children, did their laundry, drove them to doctor's appointments, shopped for them and attended to their daily care while the defendant provided the financial support for the blended family.   The parties were appreciative of the other's contributions to the household.

In 2004, the plaintiff returned to work as a part-time nail technician, working approximately 25 hours per week.   She was diagnosed with carpal tunnel syndrome, had surgery on both wrists in 2006, then voluntarily ended her career as a nail technician.   The plaintiff remained unemployed until 2011 when she obtained a job with Key Personnel, an agency that provides companion and homemaker services for the elderly.   The plaintiff earns $9.00 an hour as a caretaker, but her hours of employment vary greatly, ranging from 40 hours per week to 4 hours per week, the latter amount being that which the plaintiff was working at the time of trial.   Although the plaintiff's hours were reduced significantly over the last several months due to circumstances beyond her control, she has not actively sought other employment or applied for unemployment benefits.   The plaintiff testified that she does not want to work full-time and that she is not presently looking for work for a variety of personal reasons, one of which is that she is interested in enrolling in classes full-time next year in order to obtain a Certified Nursing Assistant (CNA) certification.   The plaintiff reports on her financial affidavit that she grosses $192.00 per week and nets $167.00 per week.

The defendant is 55 years old, holds a high school degree and a certificate in mechanical welding.   He is in average health.   He suffers from a disabling back injury dating from 1987 and had carpal tunnel surgery and knee surgery in 2006.   Despite his injuries, the defendant works long hours, averaging more than 50 hours per week as a driver for JHD Corporation, a position he has held for the past three years.   The defendant works weekdays from 6:00 am to 5:00 pm.   After work, he goes to his family's farm to socialize and work on farm equipment.   He generally returns home between 8:30 or 9:00 pm.   The defendant spends his weekends similarly at the farm and doing some side jobs.

For at least the past three years, the defendant has held a contract with the state to provide snow-plowing services.   He has also done some private snow-plow side jobs.   He placed a bid with the state for a snow-plow contract for the current year but as of the time of trial had not been notified if he had been awarded the contract.   As the defendant testified, there are “no guarantees” that he will be awarded another state contract.

The defendant reports that he grosses $1,258.00 per week and nets $994.75 per week as a driver for JHD Corporation.   His gross income from snow-plow work for the years 2010, 2011 and 2012 was $8,802, $23,245 and $26,616, respectively.   However, after expenses and depreciation, the parties' income tax returns reflect that they netted $1,271 for such services in 2010, but lost $8,382 in 2011 and $6,095 in 2012.

The plaintiff claims that the marriage broke down because the defendant was not affectionate and did not spend enough time with her.   She chose to leave the marriage because she was lonely and unhappy.   The defendant admitted that he is not a very affectionate person, but testified further that he loved the plaintiff when he married her, and when she left him.   The defendant claims that the marriage broke down because the plaintiff wanted a better life than the one he provided for her.   He testified that he made enough money to support the household, but the plaintiff overspent on clothes, shoes and other items for herself.   Each party accuses the other of drinking too much.   The plaintiff concedes that she is now living with another man but denies that she was having an extramarital affair while she and the defendant still resided together.   There are no allegations of physical abuse between the parties.   Both parties agree that the marriage has broken down irretrievably and that there is no hope of reconciliation.   The court finds that neither party bears greater responsibility than the other for the breakdown of the parties' thirteen-year marriage.

When the parties separated, the plaintiff took with her various items of personal property including furniture, jewelry and a car.   While this action was pending, the plaintiff sold the car for $3,000 and gave the money to her daughter.   The parties amassed significant credit card debt during the course of their marriage, none of which is presently being repaid by either party.

The plaintiff seeks dissolution of 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.

III

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, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81.”  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 plaintiff seeks an award of alimony in the amount of $350 per week for a period of eight years terminating only upon the earlier of the death of either party or remarriage of the plaintiff.   The defendant proposes that he pay no alimony to the plaintiff because she is living with a boyfriend and he is supporting her.

As noted above, the court does not find one party more culpable than the other for the irretrievable breakdown of the parties' marriage.   The defendant is seven years older than the plaintiff and in poorer health.   The parties have similar educations and are of comparable station.   The defendant's income greatly exceeds the plaintiffs, however, the plaintiff is underemployed and has the ability to work more than she presently does.   The estate and needs of the plaintiff are also impacted by her present living situation and the financial support she receives from her boyfriend.   The court has taken these factors into account in the construct of these alimony orders.   The defendant's estate and needs are also impacted by the loose rental arrangement he enjoys while residing in a house owned by his father.   The court has considered all of the statutory criteria cited above and the case law construing it when entering the orders below with respect to alimony.

VI

Assignment of the Marital Estate

The plaintiff seeks an award of $10,000 to compensate her for her portion of the marital estate.   The defendant seeks an award of $7,500 to compensate him for his portion of the jewelry and furniture that she removed from the parties' home when she left.   The plaintiff also requests that the court enter no orders regarding the parties' debts.   The defendant requests that the court allocate responsibility for the parties' debts 60% to the plaintiff and 40% to the defendant.

“[T]he assignment of property in a marital dissolution rests in the sound discretion of the court.”  (Citation omitted.)  Ridgeway v. Ridgeway, 180 Conn. 544.  “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).

There is insufficient evidence before the court from which it can determine the value of the parties' personal property, excluding motor vehicles.¹  The plaintiff removed furniture from the Wallingford property when she left and also took various pieces of jewelry.   The value of the furniture and jewelry taken by the plaintiff was not established at trial.   The plaintiff also took a car, subsequently sold it, and gave the proceeds of the sale, $3,000, to her daughter.   The defendant retained the remaining furniture in the house, his jewelry, some guns, and a snow mobile.   The value of the personalty retained by the defendant was not established at trial.   The defendant also owns a 2005 Chevy Silverado valued at $3,000 and two trucks he uses for snow-plowing valued collectively at $4,800.   Neither party asks the court to award to him or her any particular piece of personal property;  both seek only monetary compensation for the personalty that is in the other party's possession.   Each party maintains a bank account with an approximate balance of $200 or less.   Neither party lists any stocks, bonds, mutual funds or retirement accounts on his or her respective financial affidavit.

As discussed above, the court has considered various statutory criteria in the alimony context and will not restate its relevant findings here.   Additionally, the court has carefully considered the parties' opportunity for future acquisition of capital assets and income as well as the contribution of each party to the acquisition, preservation and appreciation in value of the parties' respective estates.   Taking all the statutory criteria into account and the case law construing it, the court enters the orders below assigning the parties' marital estate.

V

Orders

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

2. Alimony:

a.  No alimony is awarded to the defendant.

b. The defendant shall pay periodic alimony to the plaintiff in the amount of $200.00 per week.   Alimony shall terminate upon the earlier of three (3) years from the date of judgment, the death of either party or the remarriage of the plaintiff.   Alimony is modifiable as to amount except that the plaintiff shall have the ability to earn up to $18,000 gross taxable income per year as a safe harbor before the defendant shall have the right to seek modification of the alimony award based upon a substantial change in circumstances arising solely from the plaintiff's income.   Alimony is not modifiable as to term except pursuant to General Statutes § 46b–86(b) in the event of the plaintiff's cohabitation with persons other than her immediate family members or her current co-habitant, Jerry Nero.

3. Health Care Insurance:

a.  Each party shall be responsible for the procurement and cost of his/her own health insurance.

b. At the plaintiff's request, the defendant shall cooperate with the plaintiff in obtaining COBRA medical insurance for the plaintiff from the defendant's employer.   The plaintiff shall be responsible for paying the costs of COBRA medical insurance coverage for as long as she is legally eligible for such coverage.   If the plaintiff is able to obtain insurance through her employment or other source at no cost or a lower cost to her, she shall obtain the same, as long as that insurance covers any then pre-existing medical conditions.

c. For so long as the defendant has an obligation to pay alimony to the plaintiff, the parties shall exchange, on an annual basis, W–2s and 1099s within two (2) weeks of receipt of such documentation.

4. Motor Vehicles:  The defendant shall retain all right, title and interest in and to the 2005 Chevy Silverado and the two snow plow trucks listed on his financial affidavit, free and clear of any claim by the plaintiff.   The defendant shall be solely responsible for any costs and expenses associated with said motor vehicles and shall hold the plaintiff harmless for same and shall indemnify the plaintiff for any liability arising therefrom.

5. Personal Property:  The plaintiff is awarded, free and clear of any claim by the defendant, all personal property which is currently in her possession, together with any jewelry that may be currently in the defendant's possession that was gifted to her by the defendant during the parties' marriage.   The defendant is awarded, free and clear of any claim by the plaintiff, all personal property which is currently in his possession, together with any jewelry that may be currently in the plaintiff's possession that was gifted to him by the plaintiff during the parties' marriage.   Each party is to deliver to the other any jewelry awarded herein within thirty (30) days of the date of this decision.

6. Bank Accounts:  Each party is awarded, free and clear of any claim by the other, the bank accounts listed on the parties' respective financial affidavits.

7. Debts and Liabilities:  Each party shall be solely liable (100%) for any and all debts in his or her individual name and equally liable (50%/50%) for any and all debts held by the parties jointly.

8. Attorneys Fees:  Each party shall be responsible for payment of his or her own attorneys fees and costs.

Morgan, J.

FOOTNOTES

FN1. “[W]hen neither party in a dissolution action chooses to introduce detailed information as to the value of a given asset, neither party may later complain that it is not satisfied with the court's valuation of that asset.”  Bornemann v. Bornemann, 245 Conn. 508, 535, 752 A.2d 978 (1998)..  FN1. “[W]hen neither party in a dissolution action chooses to introduce detailed information as to the value of a given asset, neither party may later complain that it is not satisfied with the court's valuation of that asset.”  Bornemann v. Bornemann, 245 Conn. 508, 535, 752 A.2d 978 (1998).

Morgan, Lisa K., J.