Nicholas Casertano v. Jean Casertano (2013)

MEMORANDUM OF DECISION

The plaintiff who was a resident of Meriden, Connecticut initiated this action for dissolution of marriage with a complaint that was returned to the court on October 2, 2012.   At the time, the defendant was a resident of Meriden, Connecticut.

The court finds that it has jurisdiction and that all statutory stays have expired.

A limited contested trial was held before the undersigned on December 18, 2013.   Both parties appeared at trial and were represented by counsel.

The court has fully considered the criteria of General Statutes §§ 46b–81, 46b–82, 46b–84, 46b–56, 46b–56c and 46b–62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that the following facts were proven by a preponderance of the evidence:

1. The plaintiff and the defendant whose maiden name was Rametta were married on October 20, 1989 in Meriden, Connecticut.

2. One of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.

3. The marriage of the parties has broken down irretrievably without the prospect of reconciliation.

4. There is one minor child Rachael Casertano, born to the wife since the date of the marriage, born April 10, 2000.   No other children have been born to the wife since the date of the marriage.

5. Neither party has received assistance from any State or local agency.

6. At the time of the marriage, the parties had few assets and most of the marital estate was accumulated during the course of the marriage.

7. The husband vacated the marital residence on or about December 31, 2011 and initiated dissolution proceedings nine months later.   He claimed the child on his tax return as a dependent on his 2012 tax return.

8. The husband has been residing since the separation with his parents in Meriden while the wife continues to reside in the marital residence which the parties have been renting for 25 years.

9. To their credit, the parties entered into a shared parenting agreement on July 30, 2013, calling for equal time with their minor child which seems to be working well.   The parties agreed that this agreement should be incorporated by reference.

10. Both parties are 50 years old.   The husband is in excellent health and operates a septic cleaning business together with his father.   He claims to gross $575 per week and nets $532 per week which was uncontroverted.

11. The wife complains of residual effects from back surgery in 1987, a cyst on her kidney and a tumor which was removed from her spine.   She claims that she cannot stand for long periods of time, but admitted that these ailments have not interfered with her ability to work.   She is a barber and has been working in her father's barbershop for 32 years which she now manages alone.   She claims to earn $700 per week gross and $647 per week net which was uncontroverted.

12. During the marriage both parties engaged in behaviors which led to their drifting apart and being incompatible.   Both parties share blame in their marriage failing, the wife being more to blame.

13. There presently exists as marital assets an unfinished home in Cheshire with no mortgage, valued at $290,000, the husband's Toyota vehicle valued at $12,000, the husband's Camaro vehicle valued at $3,000, the husband's bank accounts valued at $1,400, the husband's retirement accounts valued at $4,500, the wife's Cadillac Escalade valued at $30,000, subject to a $13,000 loan, the wife's bank accounts valued at $8,400 and the wife's retirement accounts valued at $17,000.

14. The debt of the parties includes claims against the real estate which may or may not be viable and the auto loan.   The husband testified that in the construction of the unfinished home, certain contractors (friends and family) filed mechanic's liens against the property on November 26, 2012 (Exhibit 2) and on December 11, 2012 (Exhibit 1).  Connecticut General Statutes § 49–39 makes invalid and unenforceable any mechanic's lien not acted upon within one year.

15. The parties stipulated and agreed that the court shall retain continuing jurisdiction regarding post-majority educational support, each party will retain their own bank accounts and retirement accounts, that the unfinished real estate should be listed and sold, that each party would retain their respective motor vehicles, that the husband will maintain health insurance for the minor child, that the shared parenting agreement would remain in full force and effect, that each would pay their own attorneys fees, and that the husband would retain all of his interest in his business and that the wife would retain all of her interest in her business.

16. In actuality, the only disputes involved are whether and to what extent the wife should receive alimony and child support, whether the husband should provide health insurance for the wife postjudgment, how they would share the dependency tax exemption and how they would divide some personal property.

17. In view of the fact that based on the uncontroverted financial information available to the court, the wife out-earns her husband, the wife's claim for alimony and child support is weak.   When questioned, both she and her attorney attempted to justify the claim because historically, the husband had provided continuous support for the family until the separation.   Notwithstanding the length of the marriage, the court cannot enter an order of alimony or child support against the husband based on the facts of this case known to the court.

ORDERS

The court orders the following:

1. The parties shall enjoy joint custody of the minor child pursuant to their shared parenting agreement.   Neither party shall injure the child's opinion of the other parent by their words or their actions.   Neither parent shall permit any third party to injure the child's opinion of the other parent by their words or their actions.   Neither party shall discuss any adult matters with the child, including but not limited to this trial or any other court-related matter.

2. The court finds that based on their shared parenting arrangement and that the parties earn similar incomes (although the wife out-earns the husband), the court will enter no child support order.

3. Based on the length of the marriage, and other statutory criteria considered by the court, each party will receive one dollar per year alimony, modifiable as to amount which will terminate upon the earlier of either party's death, remarriage, cohabitation or 15 years.

4. Each party will retain their respective vehicles and cooperate with one another to effectuate a transfer of the titles and registrations.   Each party shall be solely responsible for all the expenses, insurances, taxes and loans associated there with and hold the other harmless on any debt associated there with.   The wife shall use her best efforts to refinance the car loan to remove the husband's name from the loan.

5. The husband shall maintain health insurance for the minor child so long as available through his employment.

6. The court will retain continuing jurisdiction regarding post-majority educational support.

7. Each party will retain their own bank accounts and retirement accounts.

8. The unfinished real estate shall be listed and sold.   The court will retain continuing jurisdiction over the sale of said real estate.   Out of the sale proceeds, only those taxes, closing costs and liens required by the buyer to be discharged are to be paid.   The net proceeds shall be divided between the parties, 55% to the husband and 45% to the wife in view of the fact that the wife is receiving more value in bank accounts and retirement accounts and that she is greater at fault for the cause of the dissolution.   Both parties shall be equally responsible for any carrying costs or taxes associated with the real estate until it is sold.

9. The shared parenting agreement shall remain in full force and effect.

10. Each shall pay their own attorneys fees.

11. The husband shall retain all of his interest in his business and that the wife shall retain all of her interest in her business.

12. The court will retain continuing jurisdiction regarding post-majority educational support of the minor child pursuant to Connecticut General Statutes § 46(b)–56c.

13. The wife may take the dependency exemption each odd year and the husband shall take dependency exemption in every even year.

14. Each shall pay their own counsel fees.

15. Each party shall provide their own health insurance.

16. The parties shall meet in an attempt to resolve their outstanding issues over personal property within the next 30 days.   If they are unable to do so, they shall submit the matter to binding arbitration with Attorney William Watson, New Britain, Connecticut and share the attorneys fees involved in that dispute equally.

17. Dissolution may enter.

BY THE COURT

Kenneth L. Shluger, Judge

Shluger, Kenneth L., J.