Jimmy J. Klug v. Robin L. Klug (2014)

MEMORANDUM OF DECISION AFTER DISSOLUTION TRIAL

I. Nature of the Proceedings

This action arises out of the dissolution of marriage complaint filed by the plaintiff husband, Jimmy J. Klug, against the defendant wife, Robin L. Klug, on January 25, 2013.   The complaint seeks, inter alia, the dissolution of the parties' nearly six-year marriage that resulted in the birth of two children, each issue of the marriage.   Other court proceedings, including a prior dissolution commenced by the wife, civil restraining orders and criminal protective orders, played a significant role in the marital discord.   They will be hereinafter described and have had a significant impact on the court's decision and the dissolution orders.   Prior to the commencement of the dissolution trial, the parties were able to reach agreement on several issues, including the children's health insurance, the husband's life insurance, the division of the marital real and personal property and, most importantly, a parenting plan.   With the able assistance of attorney Bridget Garrity, who was appointed as Guardian ad litem in this case, the parties have agreed upon a parenting plan, which is attached hereto as Schedule A. The court agrees with the Guardian ad litem that such plan is in the children's best interest.   It is therefore incorporated into and made part of the dissolution judgment.

Shortly before the start of testimony, the court modified the pendente lite custody/visitation order by approving the plan and ordering its immediate implementation.   The significance of this modification will also be hereinafter explained.   It was left for the court to decide many other issues relevant to a dissolution of a marriage, including child support, alimony, deferred compensation, attorneys fees and the allocation of responsibility for the substantial debt that accumulated during the marriage.

The trial commenced on September 17, 2013, and concluded the next day.   In addition to the husband and wife the court heard from two young ladies on the issue of the husband's admitted adultery.   The court received ten exhibits consisting of tax returns, earnings statements, a tool company invoice and an affidavit accounting for the wife's attorneys fees.   Having heard the testimony, after a careful review of all of the exhibits and the respective financial affidavits submitted by the parties;  after taking judicial notice of all other relevant court orders, civil and criminal;  after reviewing and carefully considering the proposals offered by each of the parties;  and after considering all of the relevant factors provided in the applicable dissolution statutes, the court hereby makes the following findings applicable and relevant to the many unresolved issues.

II. Prior Proceedings

A. 2010

On February 2, 2010, the wife filed in this court a dissolution action against the husband (FA10–4009335).   That action was commenced shortly after the husband was arrested for a domestic violence incident that resulted in a protective order that was issued by the criminal court (GA # 18).   The husband's conduct, which awakened his then two-year and one-year-old daughters, consisted of screaming and yelling at his wife, then, ripping the one-year-old from her mother's arms and physically assaulting his wife, leaving several bruises.¹  Although the husband's arrest was clearly justified, his reaction to the subsequent so-called residential stay away order was ill-motivated.   Upon his release from custody, he removed the entire balance, approximately $1000, from the parties' joint checking account and thereafter provided no funds to his spouse, the person protected by the order of the criminal court, until March 2010, when a pendente lite financial order was issued by this court that imposed upon the husband the obligation to pay child support in the amount of $283 per week.   Moreover, and equally ill-motivated, he had no contact with his wife or his two children for two months, even though neither the criminal protective order nor the subsequent civil restraining order included such a prohibition.

On March 10, 2010, by agreement of the parties, the court issued an order granting physical custody and exclusive residence to the wife with supervised visitation only to the husband.   The visits with his children were to be supervised by the paternal grandmother.   The husband was ordered to engage in counseling, presumably of the domestic violence type, consistent with the orders from the criminal court.   According to the credible testimony of the wife, the husband treated the court-ordered counseling sessions “as a joke,” and warned her that if she was not happy with the amount of court-ordered child support, he would “reduce his [reportable] hours” at work and be paid “under the table.”   Apparently, the husband did successfully complete the state's domestic violence program resulting in the dismissal of the criminal case.²  On April 28, 2010, the wife filed a request for reconciliation and agreed a month later to lift the supervision restriction from the visitation order.   The case was ultimately dismissed on December 22, 2010, due to the failure of the parties to pursue the dissolution action.

B. 2013

As noted, the present action was commenced by the husband on January 25, 2013, returnable to this court on February 19, 2013.   The complaint was based upon a claim that the marriage had broken down irretrievably.   The wife, whose maiden name was Robin L. Cantoni was married to the husband on February 10, 2008, in Torrington, Connecticut.   Both parties had been residents of the state of Connecticut for one year prior to bringing the current action.   Neither of the parties nor their children have received any assistance from the state of Connecticut or any municipality thereof.   Both parties agree that the marriage is broken down irretrievably and that there is no prospect for reconciliation.   The parties have two children who are issue of the marriage, to wit, Eleanor Grace who was born January 25, 2008, and will soon be six years of age and Evelyn Faith, who was born August 21, 2009, and is currently four years of age.   No other children have been born to the wife since the date of marriage and at the time of the hearing she was not pregnant with child.   By cross complaint filed by the wife on March 1, 2013, she confirmed the date and place of the parties' marriage and the birth dates of each of the children.   The ground upon which the wife's cross complaint is based is the husband's alleged adultery.   During the trial the wife's attorney informed this court that she was proceeding on her cross complaint.

On February 26, 2013, while the present dissolution action was pending, the court issued an ex parte restraining order against the husband that ordered him out of the marital dwelling.   The order was based upon a sworn affidavit submitted by the wife detailing the husband's violent behavior in front of the two children.   That order was continued on several occasions to April 3, 2013, at which time it was supplanted by a pendente lite order issued in this present dissolution action.   One day prior to the issuance of the ex parte restraining order, the criminal court issued a residential stay away order as a result of the husband's arrest for a second incident of domestic violence.   He was charged with breach of peace in the second degree (C.G.S.53a–181), criminal mischief in the fourth degree (C.G.S.53a–117a), unlawful restraint (C.G.S.53a–96) and tampering with evidence (C.G.S.53a–155).   The criminal case was pending at the time of the dissolution trial.   According to the sworn affidavit submitted by the wife in support of the application for the ex parte restraining order and confirmed by her credible and unchallenged testimony at the dissolution trial, the incident that resulted in the husband's arrest for violent behavior in the presence of the two children included the husband's seizing of the wife's cell phone as she attempted to call the police and tossing the phone into the toilet.   The land line was not functioning at the time, thus the cell phone was the only vehicle by which the wife would be able to call for emergency response.   Fortunately, there was sufficient battery power remaining to enable her to do so.   Once having summoned the police, however, the phone would no longer function.

On April 3, 2013, a pendente lite order granted physical custody of the two children to the wife and exclusive possession of the marital home as well.   These orders were consistent with the civil restraining order then in effect.   Once again, by agreement, the husband was to have supervised visits only.   This time the visits were supervised by the maternal grandmother.   As noted that temporary custody/visitation order was modified by the attached parenting agreement, which is now the current court-ordered parenting plan.   Additional pendente lite orders were issued by the court after a two-day hearing.   They consisted of a child support order of $300 a week that included an order that the husband pay 100% of all unreimbursed medical and dental expenses of the children;  that the husband pay 80% of the Guardian ad litem's fees and $3,000 as an allowance to prosecute to the wife's attorney within sixty days.   The husband was ordered to pay the “electric, gas, water, cable, phone, insurance and taxes, on the house and insurance on both cars.” ³  The aforementioned financial orders were in effect at the time the dissolution trial commenced.⁴

III. The Marital History

A. In General

The parties started dating in November 2003 and lived together for four years prior to their marriage on February 10, 2008, which occurred two weeks after the birth of their first child.   The marital home is located at 768 Klug Hill Road in Torrington, Connecticut, and is solely owned by the husband.   It is located on a lot that was a portion of farm acreage owned and occupied by the husband's parents and siblings.   Although the home is currently occupied by the wife and two children, it is significantly underwater in that the balance due on the mortgage greatly exceeds the value of the home and is currently the subject of a foreclosure action, (CV13–6009447), Citifinancial v. Klug et al.   That action was returnable on October 8, 2013, and is currently pending in this court.   The husband has not as yet filed an appearance.   He resides with his brother in a residence located within 100 yards of the marital residence occupied by his wife and two children.   The parties agree that the husband will retain sole title to the home and save the wife completely harmless from any mortgage obligation relative thereto, although, apparently, he was the sole signatory to the mortgage note, dated January 10, 2008.   In its complaint in the foreclosure action, the mortgagee claims that the balance currently due exceeds $246,000.   In his financial affidavit the husband asserts a market value of $200,000.   The last payment on the mortgage was made by the husband in December 2012, which, as will be hereinafter addressed, was the same month that the husband's substantial overtime earnings ceased!   At the time of the marriage the husband refused to add his wife's name to “his house,” apparently in anticipation of the marriage ending in divorce.   According to the credible testimony of the wife, he told her at that time:  “You won't f_ me out of my house!”

During the marriage and presumably prior thereto the husband led an active social life and accumulated many “toys” (Jeep, Camaro, dirt bikes, etc.), and a variety of farm animals, including chickens and baby goats.   In addition to their two children, the wife was expected to and did provide for the care and feeding of the animals.   These added financial burdens put the family deep into debt and ultimately ruined the wife's credit rating.

In December 2012, a month prior to the commencement of the present dissolution action, with Christmas approaching, the husband demanded all of the credit cards in his wife's possession, while keeping the family checkbook in his sole possession, resulting in the wife being compelled to seek financial assistance from her parents.   Moreover, as referred to above, the husband, after receiving substantial overtime earnings on a regular basis throughout the marriage, received his last overtime pay check on December 20, 2012.   Plaintiff's Exhibit # 7.   At the time the husband commenced the present action, the wife, despite the aforementioned conduct by the husband, remained committed to saving the marriage while the husband committed himself to a second adulterous relationship.⁵

B. As To The Husband

At the time of the hearing the husband was thirty years old, was a high school graduate with two years of college and trained in automotive repair.   He appeared to have been in good health and the court heard no testimony to the contrary.   He has been and still is a trained equipment mechanic working on heavy construction equipment.   He claims that he currently earns much less than he had earned in the past as he took a management position and no longer gets the overtime that was previously available to him and is now, because of this new managerial position, obligated to purchase his own tools at a greater expense than he incurred in the past.

The wage earnings of and tool expenditures by the husband are discerned from this court's full examination of income tax returns and earnings statements covering January 2008 through August 2012.   His annual earnings range from a low of $57,248 in 2010 to a high of $152,336 in 2012.   His highest earnings were achieved while he was employed by three different employers:  O & G Construction, Cocchiola Paving, Inc. and his current sole employer, A and J Construction, Inc.

He testified that in June 2012, he terminated his employment with Cocchiola, a company for whom he worked in 2011 and 2012, because it was and is a nonunion company.   He contends that if that employment was discovered by either his union or employer, such as O & G and his current employer, both apparently employing union workers only, he would risk losing his union membership, thereby severely limiting his opportunities for present and future employment.   He was hired by A and J Construction in June 2012 to perform maintenance and repair work on its heavy construction equipment.   From the date he commenced that employment to December 20, 2012, in addition to his regular earnings, averaging $1,600 gross per week, he worked 813.50 hours of overtime over a period of twenty-five weeks for which he received a total of $48,810, which amounts to $1,952.40 in average gross weekly overtime pay for that period.   Apparently, commencing in January 2013, while contemplating the end of his marriage and the beginning of his second adulterous relationship, he accepted his current managerial position, although he continues to perform the same employment duties that he performed for each of his previous employers.   He testified that he currently works 50 to 55 hours per week, which encompasses six days and that his current weekly gross earnings, consistent with his sworn financial affidavit dated September 16, 2013, are $1,622, a claim which is corroborated by the A and J earnings statement.   Plaintiff's # 7.

According to the husband, he accepted this lower paying position in order to avoid the severe fluctuations in his income, to eliminate the eighty-hour weeks he had worked during the “good years” and to lead a less stressful life.⁶  He added that his employer supplies a vehicle for his own use and pays for the gas, however, he asserts that his mandated purchase of the tools and software required to perform his employment duties has substantially increased his tool expense, which he claims in his financial affidavit amounts to $260 per week.

C. As To The Wife

At the time of the hearing, the wife was twenty-seven years of age and in good health.   She is a certified nursing assistant (CNA), who, at times during the marriage, worked and went to the school, each part-time.   She became an emergency medical technician (EMT) and now works part-time, averaging eighteen to sixteen hours over a two-day period, for a volunteer fire department while attending full-time classes as she pursues a college degree and certification as a registered nurse at Naugatuck Valley Community College.   She testified that when she was hired for the EMT position, the husband was angry as he did not want to babysit his children while she received an emergency call to duty.   Due to her work and class schedule, she requires the children, who are currently age five and four, to be placed in a daycare facility at the local YMCA at a cost of $400 per week for which she qualifies for a $200 per week subsidy.   She plans to move to Goshen, closer to the residence of her parents, where the total daycare cost for the two children would be $250 per week and where the five-year-old would be able to attend a full-time kindergarten.   In order, however, to move her and her children to an apartment or multifamily dwelling in Goshen, or anywhere else for that matter, she requires funds for the movers and for a security deposit.   She hopes to complete all of the required courses and obtain her RN certification by the summer of 2015.   She relies on education loans and has applied for certain available grants in order to complete her education.

The wife attends full-time classes at NVCC four days per week.   On those days she drops the children off at the YMCA at 6:30 A.M. and picks them up between 4:00 and 4:30 P.M. Thereafter, she feeds them dinner, puts them to bed and then proceeds to complete “lots of homework.”

IV. The Dissolution Statutes And The Husband's Earning Capacity

A major issue, perhaps, the core issue that the court must address and resolve is the determination of the husband's earning capacity and whether the court should utilize that earning capacity or the husband's claimed current earnings in fashioning the financial orders.   That determination will have a direct impact on, inter alia, the child support as well as the amount and duration of any periodic alimony.   Recently, the judicial and the legislative branches of our state government each addressed the issue of a party's earning capacity in the context of a dissolution of marriage action.   In Tanzman v. Meurer, 309 Conn. 105 (2013), an opinion released on July 9, 2013, our Supreme Court, two justices dissenting, held that when a trial court determines any financial support issue based upon a party's earning capacity, it “must determine the specific dollar amount of [that] capacity.”  Id. At pages 107–08.  “It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards pursuant to General Statutes §§ 46b–82(a) and 46b–86 on the earning capacity of the parties rather than on actual earned income.   Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.   When determining earning capacity, it ․ is especially appropriate for the court to consider whether a person has willfully restricted his or her earning capacity to avoid support obligations.”  (Internal brackets omitted, citations omitted.)  (Emphasis added.)  Id. at pages 113–14.  “We agree that, when it is determining earning capacity, the trial court's consideration of such things as vocational skills, employability, age, health and evidence that the party has deliberately avoided employment is meant to be flexible and adapt to the particular facts and circumstances of the case.   That does not mean, however, that the ultimate determination of the earning capacity is meant to be flexible and nonspecific.”  Id. at page 117, Note 6.

On June 25, 2013, effective October 1, 2013, the General Assembly enacted Public Act 13–213, Sec. 2, which amended General Statutes Sec. 46b–81(c) and Sec. 3, which amended Sec. 46b–82(a) by adding to the statutory factors provided in the cited subsections, two additional factors that the court in a dissolution action must consider when determining property distribution and alimony issues:  the education and the earning capacity of each of the parties.   Since the amendments are not effective until October 1, 2013, and given that the court concluded the dissolution trial on September 18, 2013, the court is not obligated to consider the newly added factors, however, along with each of the pre-amendment statutory factors, has done so in this case because they are relevant and material to the resolution of the issues presented.⁷

V. The Proposed Disposition

As noted, the parties have agreed to a parenting plan (Schedule A), the division of the real property and tangible personal property (Schedule B), including the transfer of title to the 2005 Volvo to the wife, the children's health insurance and the husband's life insurance.   They have agreed that the court will keep jurisdiction relative to post-majority educational support.   They were unable to agree, however, on many other dissolution issues including child support, alimony, payment of the marital debt, the husband's deferred compensation, attorneys fees and the wife's moving expenses.   Each of the parties had submitted written proposals prior to the commencement of trial and each during testimony clarified, and in some instances, augmented the written proposals.   There is major disagreement on each of the unresolved issues, in particular, the amount of the support for the two children, the amount and duration of periodic alimony and allocation, if any, of the husband's 401k and union annuity accounts totaling, per his financial affidavit, $48,272.40.⁸

The driving force behind the wife's alimony and child support proposals is her claim that the court should base those financial orders, not on the weekly earnings disclosed by the husband in his financial affidavit (a weekly gross of $1,622 and net of $1,042.38), but on his earning capacity, which she asserts is equal to a weekly gross of $2,519 and weekly net earnings of $1,692.   As to the child support, in her written proposal, the wife requested $410 per week, however, during her testimony, she indicated that she would accept the husband's proposal of $300 per week as child support, which is the current pendente lite order.   In setting an order of child support, however, the court must follow Connecticut's Child Support Guidelines, first, by finding, via the guidelines worksheet, the presumptive weekly child support payment based upon a finding of the net income of each of the parties and then applying allowable deductions and the guideline Schedule of Basic Child Support Obligations.   The court must then determine whether any of the deviation criteria provided in the guidelines would apply to the facts and circumstances presented.   Only after performing those mandated functions may the court then enter the appropriate child support order.   The court is not permitted to simply accept the parties' agreement as to the amount of support their children are entitled to.   O'Brien v. O'Brien, 138 Conn.App. 544, cert. denied, 308 Conn. 938 (2012).   As to periodic alimony, the wife seeks $600 per week, unmodifiable and terminating after three years, in anticipation of her RN certification.   In addition to moving expenses and added attorneys fees, she asks the court to order the husband to assume responsibility for the payment of all of the marital debt, including all the wife's outstanding student loans.

Although his written proposal offered unallocated alimony and child support of $400 per week, an order which, as explained to the parties, this court does not favor, during his testimony, the husband modified the proposal, offering to pay to the wife, in addition to child support of $300 per week, periodic alimony of $150 per week for a period of three years, during which he would also pay 100% of the child's medical and dental expenses.   His offer was and is based upon his claimed earnings per his financial affidavit.   He is willing to pay all of the “consolidated debt,” however, he is unwilling to pay any additional attorneys fees to his wife's attorney.   He asks the court for permission to claim both children as exemptions for federal and state income tax purposes.   He has not offered to reimburse the wife for money loaned to her by her parents for tires, a new cell phone, and attorneys fees, and has made no offer of any contribution to the wife's anticipated moving expenses and security deposit.   The court heard no offer by the husband to pay any portion of the wife's COBRA health insurance premium.⁹

VI. Discussion

This relatively brief marriage that resulted in the birth of two children, now ages six and four, was defined by the husband's violent behavior toward his wife in the presence of the children and the husband's marital infidelities.   The domestic violence that occurred in 2010 and, again, in 2013, resulted in the issuance of criminal protective orders and civil restraining orders.   Moreover, during each dissolution action, the husband agreed to court orders that gave the wife exclusive possession of the marital residence, relative to which he refused to add the wife's name as a joint owner.   In each such proceeding, he agreed that visits with his children would be supervised by either of the maternal grandmothers.   After the wife chose not to pursue the dissolution of their marriage in the 2010 action, and, in good faith, tried to save that marriage, the husband responded by pursuing a second adulterous relationship.   Although the husband has no one to blame but himself for his two domestic violence arrests and resulting protective orders, instead of accepting responsibility for his violent behavior, he blamed the victim, severed contact with his children for months and proceeded to punish his wife by depriving her of the funds she required to care for the children and to maintain their household.

Although the criminal court certainly expected him to benefit from the state's domestic violence program, he did not take that program seriously and belittled and made fun of the court-ordered counseling.   Given the character demonstrated by the husband's behavior during the marriage and the earnings history set forth in the several financial exhibits (tax returns and earnings statements), coupled with his cessation of the $417 monthly mortgage payment one year ago, the court does find, as the wife asserts, that he has “willfully restricted” his earnings in order to avoid the full brunt of his child support and alimony obligations.  Tanzman v. Meurer, supra, 309 Conn. 107–08.   The court finds quite credible the wife's claim that he told her he would do just that, as his overtime earnings ceased at the same time he decided to stop paying the mortgage on the marital home.

During the conflicted marriage, the wife provided for the proper care and upbringing of not only the two children, but, as noted, for numerous animals brought onto the premises by the husband.   While discharging her parental obligations, she continued to pursue her goal of becoming a registered nurse, apparently, with little support from her husband.   In the hope of easing the financial burden, she was able to become certified as an EMT, again, with no cooperation or support from her husband, as evidenced by the wife's credible testimony that the husband was upset and angry when he was compelled to care for his children on the occasions that the wife received an emergency call.   In this court's view, all parties, the wife, the two children and even the husband, will benefit from the wife's achievement of her goal.   Adequate financial assistance from the husband, who is quite capable of doing so, is essential if the wife is to be successful in her scholastic endeavors.   Given all of the relevant statutory factors and appropriate equitable considerations, the husband must play a major, though time-limited, financial role to ensure that the wife becomes the professional she aspires to be.

In this regard, the court has carefully reviewed the husband's earnings history, as depicted in the financial exhibits, and having done so will find, in light of the husband's lack of credibility on this issue, that he has a reasonable capability of earning a weekly gross of $2,351.84.   He currently earns $40.55 per hour, amounting to $1,622 gross from a forty-hour week.   The court can reasonably infer from his union status that his overtime rate would be one and one-half times that of his hourly wage or so-called “time and a half.”   In light of his overtime history, it is reasonable to assume that he would be able to work at least twelve hours overtime per week, which is the maximum number of overtime hours permitted by the child support guidelines.   See Section 46b–215a–3(b)(1)(E).   At an overtime rate of $60.82 per hour, twelve hours would equate to additional gross weekly earnings of $729.84.   When the two figures are added, the result is $2,351.84 in gross weekly earnings, a sum that this court finds is the husband's earning capacity and the amount which the court will insert into the guideline worksheet as the husband's current gross weekly earnings for a fifty-two-hour work week.   Applying the allowable deductions, his net income is $1,546 per week.   The wife's gross and net weekly income is $194.

The court does not find as credible the husband's claim that he must now spend an average of $260 per week to acquire the tools and software required for his employment.   According to the federal tax returns, the least amount he paid for tools was $500, or $9.62 per week in 2009 and the most he paid was $3,839, or $73.82 per week in 2012, a year in which he grossed over $152,000.   It simply defies logic for this court to find that, based upon his claimed current annual gross earnings of $84,000, some $68,000 less than his earnings in 2012, he now spends $186 more per week for tools!   Moreover the December 28, 2012, statement from Matco Tool (Plaintiff's Exhibit # 9) indicates that the company expects a weekly payment of $44.50 on the current balance due.

In addition to the newly added earning capacity factor, in fashioning the periodic alimony and the distribution of the marital property orders, the court has carefully considered all of the criteria or factors set forth in General Statutes Sections 46b–82 and 46b–81, respectively.   In assessing those statutory factors, the court is not required to make specific findings as to each.  Szynkowicz v. Szynkowicz, 140 Conn.App. 525, 531 (2013).   In conducting that assessment the court has considered the applicable statutory factors guided by, not only the testimonial and documentary evidence received, but by those principles of equity and fairness that govern the exercise of discretion in family disputes.   The court is also well aware that “[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”   Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424 (1984).  “[W]e are cognizant that [t]he issues involving financial orders are entirely interwoven.”   (Internal quotation marks omitted.)  Morrone v. Morrone, 142 Conn.App. 345, 348 (2013).   The court has also reviewed the current child support and arrearage guidelines and the provisions contained in General Statutes Section 46b–84 regarding the obligation of the parents to maintain the two minor children according to their respective abilities and to provide health insurance coverage for said children.

VII. Dissolution Orders

The court finds that all jurisdictional requirements have been met.   The court has previously herein made findings as to the date of the marriage, the wife's name at the time of the marriage and the dates of birth of each of the two children.   Based upon the testimony, the court finds, per the husband's complaint, that the marriage has broken down irretrievably and that there is no prospect it is capable of reconciliation.   The court will further find in favor of the wife on her cross complaint.   The court will, therefore, dissolve the marriage of the parties, effective on the date of filing of this memorandum, on the grounds of irretrievable breakdown and the husband's adultery.   During the trial, the court ordered the husband to complete the required parenting education classes, the wife having previously done so.

THE FOLLOWING ADDITIONAL ORDERS MAY ENTER

CUSTODY/VISITATION

As noted, on September 17, 2013, the court approved the parenting agreement, a copy of which is attached hereto as Schedule A, that provided, inter alia, the parties shall have joint legal custody of the two children with primary physical residence with the wife.   Parenting time for the husband included the goal of overnight visits and a two-week summer vacation along with holiday visits.   The children would benefit greatly from the communication, cooperation and mutual respect envisioned by several provisions included therein.

CHILD SUPPORT

Based upon the financial affidavits submitted by the parties at the trial, the court finds that, per the Child Support Guidelines, the husband's presumptive child support obligation is $301 per week.   The court further finds that said presumptive amount would be inequitable and inappropriate due to several deviation criteria provided in Section 46b–215a–3.   In accordance with Subsection (b)(1)(B) and (E), the court has found that the husband's gross weekly earning capacity for a fifty-two-hour work week is $2,352, resulting, after allowable deductions, in net weekly earnings of $1,546.   The court will further find that the opportunity to earn said weekly wages reasonably could be expected based upon the husband's earnings history.   The court will find that a child support ordered based on the husband's earning capacity is appropriate in light of the extraordinary disparity between his income and that of his wife [Subsection (b)(6)(B) ], and that a child support order significantly greater than the presumptive amount is in the children's best interest [Subsection (b)(6)(C) ]. The court will, therefore, order the husband to pay to the wife a weekly child support for the support of his two children in the amount of $348 per week.   The court has attached hereto the guidelines worksheet based upon the submitted financial affidavits (Schedule C)* and that based upon the husband's earning capacity (Schedule D),* * which reflects the amount of child support ordered herein.

Given the fact that the husband is up to date on the pendente lite child support ordered by the court, this court will not at this time order an immediate wage withholding.   Nonetheless, the decision as to whether the child support order will be secured by either an immediate wage withholding or a contingent wage withholding order is entirely up to the wife.   Within one week of this date, the parties are ordered to obtain from the clerk and complete the necessary forms.   Accordingly, the first child support payment due under this order shall be made by the husband to the wife on or before Friday, January 17, 2014, and each Friday thereafter.

CHILDREN'S HEALTH INSURANCE

The husband shall continue to provide medical/dental insurance for the benefit of the minor children as available through his employment at reasonable cost to him.   In the event that said insurance is no longer available to the husband, the wife shall provide the same, if available at reasonable cost through any employment she may obtain.   If neither party is able to obtain said insurance, the parties shall cooperate to obtain medical coverage for the children via the HUSKY program or any such program that may be in effect at the time.   Pursuant to the guideline worksheet, the husband shall pay 69% of all unreimbursed health-related expenses, including dental, orthodontic (including braces), optical, prescriptive, psychiatric, and the like.   The wife shall be responsible for the remaining 31% of said expenses.   The husband shall pay to the wife his share of any unreimbursed medical/dental expenses within thirty (30) days of receipt of proof of payment by the wife.   The provisions of Section 46b–84(e) are incorporated into this order.

CHILDREN'S DAYCARE

Pursuant to the applicable guideline worksheet, the husband shall be responsible for 69% of any daycare expense, occasioned by the wife's employment or educational obligations, for the two children;  the wife shall be responsible for the remaining 31%.   The parties shall cooperate in applying for any grants or available financial assistance in order to reduce the current daycare expense.   The husband shall pay to the wife, in advance, his proportionate share of any daycare expense on the first day of any month during which said expense is anticipated.

DEPENDENCY EXEMPTIONS

The husband shall claim both children as dependents for the years 2014, 2015, 2016 and 2017.   Thereafter, commencing in 2018, the wife shall claim the younger child, Evelyn, and the husband shall be entitled to claim the older child, Eleanor, so long as each child remains eligible to be so claimed.

The parties shall timely file a joint federal and state income tax return for the year ending December 31, 2013, and they shall equally divide any refund to which they may be entitled.   If any tax is due and owing, the husband shall be fully responsible for the amount due and shall save the wife harmless therefrom.

POST–MAJORITY EDUCATION

Pursuant to the parties' agreement, the court will retain jurisdiction to enter a post-majority educational support order for each of the children, as provided by General Statutes Section 46b–56c.   Either party, therefore, may, at the appropriate time, petition the court to enter such order.   The court finds that had the parties remained an intact family, they would have financially supported their children in each child's post-secondary educational efforts and that the children are likely to pursue post-secondary educational experiences.

ALIMONY

The husband shall pay to the wife, the sum of $300 per week as periodic alimony, which shall be nonmodifiable as the duration and amount for a period of four years from the date of this judgment.   Said alimony shall terminate on January 17, 2018, or upon the sooner event of:  the death of either party or the remarriage of the recipient.   Said alimony shall be subject to the provisions of General Statutes Section 46b–86(b), Connecticut's so-called “cohabitation statute.”

Thereafter, the husband shall pay to the wife the sum of $1 per year as periodic alimony, which shall be modifiable as to amount.   This initially nominal order is purposed to secure the husband's obligations that are hereinafter ordered relative to the marital debt.   This obligation will expire six years from the date of this judgment and shall be nonmodifiable as to duration.

The $300 weekly alimony order shall be secured by whichever wage execution order, i.e., immediate or contingent, is chosen by the wife as security for the child support order entered herein.   The first such payment shall commence on Friday, January 17, 2014, which is the same date that the child support is due and shall be paid by the husband to wife on each Friday thereafter.

THE WIFE'S HEALTH INSURANCE

At present, the entire family is covered by the health insurance plan available to the husband as a benefit of his employment as negotiated through the collective bargaining process.   Although the coverage will continue to benefit the two children, as previously ordered, the wife will no longer qualify for that benefit, that is, unless she is able to continue the coverage under the COBRA federal program or under another program such as Connecticut's new health exchange.   Moreover, she may find that as a full-time college student she may qualify for a healthcare program that provides appropriate and adequate coverage.   Whichever program the wife decides to select, a premium will be assessed in an amount which will add to the parties' financial burden.   In that there has been no testimony or evidence presented to the court on this issue, the wife shall diligently investigate the health insurance coverage that might be available to her and promptly share that information with the husband.   The parties shall then appear before this court on Thursday, February 27, 2014 at 10:00 A.M., at which time an evidentiary hearing will be held to determine the manner in which this added premium will be paid.

LIFE INSURANCE

The parties shall each name the children as irrevocable beneficiaries of any and all life insurance policies that might be available to them, either through their employment or as a benefit through a labor union, until such time as the youngest child graduates from a four-year undergraduate program or attains the age of twenty-three, whichever first occurs.   Neither party disclosed any existing life insurance in his/her financial affidavit submitted at the trial.

DEFERRED COMPENSATION

In light of the length of the marriage, the health and work life expectancy and chosen profession of the wife, and, in particular, the financial burdens imposed upon the husband herein for the benefit of his wife and children, the husband shall be entitled to retain all of his deferred compensation as disclosed in his financial affidavit free of any claim by the wife to any portion thereof.   The husband, may, however, be compelled to obtain a loan or utilize some of the funds held for his retirement to satisfy some or all of the financial orders entered herein.

REAL PROPERTY

As previously noted herein, the marital home located at 768 Klug Road, Torrington is solely owned by the husband and is the subject of a foreclosure action currently pending in this court.   The court cannot recall any testimony by either party that the wife was a signatory on the mortgage note.   In any event, the parties have agreed and the court will order that the husband shall be solely liable for the payment of the mortgage, taxes, insurance and utilities and shall indemnify and hold harmless the wife from any and all liability therefrom.

It is further ORDERED that the husband shall, upon receipt of this memorandum, immediately file his appearance as a self-represented litigant in the pending foreclosure action (CV13–6009447), entitled Citifinancial v. Jimmy Klug, and shall keep the wife informed of all orders entered therein, in particular, the entry and content of any judgment of strict foreclosure.¹⁰

PERSONAL PROPERTY

2005 VOLVO

The wife shall own the 2005 Volvo automobile free and clear of any claim by the husband.   She shall be solely responsible for all costs associated with the ownership and operation of said vehicle including the personal property taxes due as of October 1, 2014, and shall indemnify and hold harmless the husband from any liability therefrom.   The husband shall be responsible for the payment of any personal property tax that may be due on said vehicle assessed on or before October 1, 2013.   Each party shall execute and deliver, at no cost to the other party, any and all documents or forms necessary to effectuate the terms of this provision.

TANGIBLE PERSONAL PROPERTY

Except for the items listed in Schedule B, all of which shall be retained by the wife, free of any claim of the husband, the court understands that parties have already divided all household furnishings and personal property to their mutual satisfaction.   If, at the time the wife and two children, either by choice or by a judgment of strict foreclosure, move out of the marital home, there is any disagreement as to the ownership of any nonessential tangible personal property, the parties will peacefully resolve the dispute via arbitration to be conducted by an attorney mutually agreed upon at a cost to be equally divided.

LIABILITIES/MARITAL DEBTS

The husband shall be solely responsible for and shall save the wife harmless from all of those liabilities listed on his financial affidavit, dated September 16, 2013, in addition to the following debts that are listed on the wife's financial affidavit, dated September 17, 2013:  FICA Card Services ($1,060);  the first listed student loan ($3,500);  and the balance due for the children's daycare ($1,500).

In that the husband has not made a mortgage payment for over one year, he is ordered to pay the balance due to the child's daycare within thirty (30) days of this date and shall pay to the wife $1,700 within sixty (60) days of the date as reimbursement for her cell phone, tire purchase and the children's unreimbursed medical expenses.   When the wife chooses to or is compelled to vacate the marital home, the husband shall pay her $3,500 to cover her moving expenses and anticipated security deposit.   The husband is ordered to pay to the wife's attorney an additional fee of $1,200, which shall be paid in twelve monthly installments of $100, the first installment shall be due on April 1, 2014, and the first of each month thereafter.

The wife shall be responsible for the following debts listed on her financial affidavit:  the two remaining student loans ($3,075);  the loan to her mother ($2,700);  her current tuition ($1,600);  the balance due to the Guardian ad litem for her proportionate share ($500), and any balance due to her attorney after crediting the $1,200 to be paid by the husband.   Judgment may enter accordingly without costs to either party.

Wilson J. Trombley, Judge

SCHEDULE A

STIPULATION1. Custody/Parenting Time

A. The parents shall share joint legal custody of their minor children, Eleanor (1/25/2006) and Evelyn (8/21/2009).   The children's primary physical residence shall be with the defendant mother.   The father shall have parenting time every Sunday, from 9:00 a.m. to 4:00 p.m. In addition, the father may have parenting access one afternoon/evening per week, with the date and time to be arranged with the mother.   The father may have additional parenting time as agreed upon between the parents.   The parents agree that they will work together to expand the father's parenting time to include some Saturday evenings overnight with the children.

B. The mother shall be entitled to exclusive vacation time with the children each calendar or school year, to be a maximum of two non-consecutive weeks per year.   Once the father has exercised his overnight parenting time in a consistent manner, the father shall be entitled to two weeks' vacation time with the minor children, per calendar or school year, which two weeks shall be non-consecutive.   Each parent shall give the other parent a minimum of 30 days written notice of the time he/she wishes to have for vacation.

C. The parents shall alternate and/or share holidays as they agree.   The parents shall share the Christmas holidays, such that one parent has the children on Christmas Eve, and one parent has the children on Christmas Day. The parents agree to share the holidays in such a way to include Christmas Eve overnight as they agree between themselves.   The parents agree that they shall endeavor to continue family traditions for the children.   The children shall be with the mother on Mother's Day, and with the father on Father's Day. The parents shall share time with the children on the children's birthdays.

D. Both parents shall have reasonable telephone/Skype/internet/Facetime access with the minor children when they are with the other parent.

E. If either party is going to be away from his/her usual place of residence for an overnight with the children, he/she shall notify the other parent of an itinerary of where the children will be, and shall ensure that the other parent has telephone numbers for the location.

F. Each parent shall communicate any parenting issues promptly via email, telephone, or text.   The other parent shall promptly respond to said communication.   The parents shall confer and use their best efforts to cooperate in deciding the major issues pertaining to the minor children's health, education, religious training, and the like, with a view toward arriving at a harmonious policy calculated to promote the best interests of the children.

G. Neither parent shall use the children as a messenger for communication between the parents.

H. Neither parent nor third party shall discuss with the children, directly or indirectly, any activity, vacation plan, access modification or the like, prior to discussion and agreement with the other parent.   If the parents have not reached agreement, the parents shall not discuss the issues with the children until there is an agreement or court order.

I. Neither parent shall do anything which may estrange the minor children from the other parent or which may hamper the free and natural development of the minor children's love and respect for both parents.   Neither parent shall disparage the other parent, or allow third parties to disparage the other parent, in the presence of, or hearing distance of, the minor children.

J. The parents shall promptly inform each other with respect to any illness or accident of the minor children.

K. Both parties acknowledge that the introduction of new significant others may be confusing to the children.   Both parties shall avoid introducing the children to new significant others until the parent believes the relationship will be an enduring one.   Neither party shall allow overnights, when the children are present with him or her, with a significant other person until after the dissolution of marriage.

2. Guardian ad Litem fees

Both parties shall make payment arrangements with the GAL within 30 days of September 17, 2013.   The guardian ad litem reserves her right to return to court to set appropriate payment arrangements if the parties fail to make satisfactory arrangements for payment.   The parents are each responsible for the fees as follows:  80% by the father, 20% by the mother.

3. Post–Majority College Education

The court shall retain jurisdiction to enter future orders for college education expenses for the children.

Plaintiff Jimmy Klug

Defendant Robin Klug

The parenting plan is approved and ordered.

Trombley, J.

SCHEDULE B

List of Items Robin Klug is requesting to retain from the house:

Furniture:

My bed and mattress

Both the children's beds and mattresses

Dining Room Table and chairs (table was house warming/wedding gift to Robin from her former boss Jim Tallon).

TV

DVD player

TV stand (gift from Robin's mother)

The couches (gifts from Robin's mother)

The computer desk

My bureau

Eleanor's bureau

Both children's desks

3 End Tables

My book case

The children's bookcases

Household Items:

All small kitchen appliances (coffee pot, microwave, etc.)

All dishes and flatware

Cooking pots, pan, and utensils

My clothing

The children's clothing

The children's toys and Books

My Books

All bed clothes and linens

Family Photos and Photo Albums

Both digital cameras

FOOTNOTES

FN1. The husband's conduct in this regard not only resulted in police involvement leading to his arrest but triggered a response from the department of children and families, which, according to the wife, substantiated the rough treatment of the child by her father..  FN1. The husband's conduct in this regard not only resulted in police involvement leading to his arrest but triggered a response from the department of children and families, which, according to the wife, substantiated the rough treatment of the child by her father.

FN2. See General Statutes Section 46b–38c(h) for the requirements for participation in and successful completion of the family violence education program..  FN2. See General Statutes Section 46b–38c(h) for the requirements for participation in and successful completion of the family violence education program.

FN3. Although the motion (# 106) filed by the wife seeking an order that the husband pay “household expenses,” included a request that he make the monthly mortgage payment, the court did not order the husband to make that payment, presumably, because there was significant negative equity in the marital residence and foreclosure by the mortgagee was expected..  FN3. Although the motion (# 106) filed by the wife seeking an order that the husband pay “household expenses,” included a request that he make the monthly mortgage payment, the court did not order the husband to make that payment, presumably, because there was significant negative equity in the marital residence and foreclosure by the mortgagee was expected.

FN4. To his credit, the husband is current on the child support order, has paid the $3,000 to the wife's attorney and has made satisfactory arrangements with attorney Garrity to pay his share of the Guardian ad litem's fee, however, despite the court order, the wife was compelled to pay $200 to the children's medical providers for which she has yet to be reimbursed..  FN4. To his credit, the husband is current on the child support order, has paid the $3,000 to the wife's attorney and has made satisfactory arrangements with attorney Garrity to pay his share of the Guardian ad litem's fee, however, despite the court order, the wife was compelled to pay $200 to the children's medical providers for which she has yet to be reimbursed.

FN5. Despite the husband readily admitting to an adulterous relationship with two separate women, the wife insisted upon calling each of said women as witnesses.   The first paramour testified that she had an affair with the husband from August through November 2011, during which the couple was intimate and texted each other “quite often.”   She was eight years younger than the husband and was the one who ended the relationship.   The second affair, also involving intimacy, took place between January and August 2013.   The husband participated in that relationship with a lady known to both parties.   That woman was six years younger than the husband..  FN5. Despite the husband readily admitting to an adulterous relationship with two separate women, the wife insisted upon calling each of said women as witnesses.   The first paramour testified that she had an affair with the husband from August through November 2011, during which the couple was intimate and texted each other “quite often.”   She was eight years younger than the husband and was the one who ended the relationship.   The second affair, also involving intimacy, took place between January and August 2013.   The husband participated in that relationship with a lady known to both parties.   That woman was six years younger than the husband.

FN6. In this regard, the husband testified that during 2012, while employed by three different employers, he grossed over $152,000 during that year, however, he often was compelled to work eighty hours per week..  FN6. In this regard, the husband testified that during 2012, while employed by three different employers, he grossed over $152,000 during that year, however, he often was compelled to work eighty hours per week.

FN7. Subsection (c) of 46–81 now provides:  “In fixing the nature and value of the property, if any, to be assigned, the court, after [hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51] considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, 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.”Subsection (a) of 46b–82, in pertinent part, now provides:  “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall [hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51,] consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, 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, as amended by this act, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment.”   The italicized language was added by Public Act 13–213.   The bracketed language was included in the pre-amendment version of the statute..  FN7. Subsection (c) of 46–81 now provides:  “In fixing the nature and value of the property, if any, to be assigned, the court, after [hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51] considering all the evidence presented by each party, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, 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.”Subsection (a) of 46b–82, in pertinent part, now provides:  “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall [hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51,] consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, 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, as amended by this act, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment.”   The italicized language was added by Public Act 13–213.   The bracketed language was included in the pre-amendment version of the statute.

FN8. In clarifying the retirement account proposal, the wife testified that she is seeking only that portion of the husband's retirement accounts that had accumulated during the marriage.   The husband estimated that his retirement account had increased by $44,000 during the nearly six-year marriage.   As will be hereinafter addressed, the court has decided that the husband will retain all of his retirement funds in light of other issues resolved in the wife's favor..  FN8. In clarifying the retirement account proposal, the wife testified that she is seeking only that portion of the husband's retirement accounts that had accumulated during the marriage.   The husband estimated that his retirement account had increased by $44,000 during the nearly six-year marriage.   As will be hereinafter addressed, the court has decided that the husband will retain all of his retirement funds in light of other issues resolved in the wife's favor.

FN9. “The Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), authorizes a qualified beneficiary of an employer's group health plan to obtain continued coverage under the plan, when he [she] might otherwise lose that benefit for certain reasons, such as [a dissolution of the marriage between the employee and the beneficiary, i.e., the spouse].”  Geissal v. Moore Medical Corp., 524 U.S. 74, 76 (1998)..  FN9. “The Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), authorizes a qualified beneficiary of an employer's group health plan to obtain continued coverage under the plan, when he [she] might otherwise lose that benefit for certain reasons, such as [a dissolution of the marriage between the employee and the beneficiary, i.e., the spouse].”  Geissal v. Moore Medical Corp., 524 U.S. 74, 76 (1998).

FN10. In this regard, a recent check of the foreclosure file reflects the current status of this action.   On September 25, 2013, the foreclosure complaint was served upon the husband by a proper officer.   On December 9, 2013, the court (Pickard, J.) entered a default against the husband for his failure to appear in the action.   Now pending before the court is the plaintiff's motion seeking a judgment of strict foreclosure (# 107).*[Editor's Note:  The referenced child support guidelines worksheet (Schedule C), pg. 21, paragraph 1 has not been reproduced.]* *[Editor's Note:  The referenced child support guidelines worksheet (Schedule D), pg. 21, paragraph 1 has not been reproduced.].  FN10. In this regard, a recent check of the foreclosure file reflects the current status of this action.   On September 25, 2013, the foreclosure complaint was served upon the husband by a proper officer.   On December 9, 2013, the court (Pickard, J.) entered a default against the husband for his failure to appear in the action.   Now pending before the court is the plaintiff's motion seeking a judgment of strict foreclosure (# 107).*[Editor's Note:  The referenced child support guidelines worksheet (Schedule C), pg. 21, paragraph 1 has not been reproduced.]* *[Editor's Note:  The referenced child support guidelines worksheet (Schedule D), pg. 21, paragraph 1 has not been reproduced.]

Trombley, Wilson J., J.