Elizabeth Baio v. Frank Baio (2014)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' twenty-seven-year marriage.   The action was commenced by a complaint dated May 16, 2012 which was returnable to the court on June 5, 2012.

The court conducted the trial on November 7, 8 and 22, 2013 and January 17, 2014 on the dissolution complaint and on the outstanding motion for contempt.   Each party was represented by counsel.

The court considered all of the evidence presented, applicable common and statutory law, including without limitation, General Statutes §§ 46b–56, 46b–56a, 46b–56c, 46b–81, 46b–82, 46b–84, and 46b–215a, and the provisions of the Child Support and Arrearage Guidelines (guidelines).   The court also took judicial notice of the court orders in the file.   The court made the following findings of fact by a fair preponderance of the evidence.

FINDINGS OF FACT

A. Relevant Facts

1. Initial Findings.   The parties were married on February 14, 1986 in Wethersfield, Connecticut.   The parties lived in the State of Connecticut for at least one year before the filing of the dissolution complaint.   All statutory stays have expired.

The parties have four children, all of whom are adults.   Two of the children, Frank and Nicole, are age twenty-three or older;  Dana (d/o/b March 5, 1992) is twenty-one and Jade (d/o/b March 28, 1995) is eighteen.   Jade is physically disabled and has significant special needs.

2. The Plaintiff's and Defendant's Earnings and Retirement Assets.   The plaintiff is 52 years old.   She suffers from migraines and Crohn's disease and she has a thyroid condition, irritable bowel syndrome and slipped discs.

She is a high school graduate and has taken a few college courses.   She has worked as a hair stylist.

From approximately late 1999 or early 2000 until 2009, the parties owned and the plaintiff operated Safari Tan, a tanning and hair dressing salon.   The plaintiff worked at the business part-time, but she came to realize that managing the business would occupy too much of her time and make it difficult to provide care for Jade. The business was sold in 2009.   The parties realized a capital gain in the amount of approximately $1,000 on the sale of the fully depreciated tanning beds and $29,000 was realized for good will and a covenant not to compete.   The accountant for the parties credibly testified that the gain realized was paid by the parties to the plaintiff's father to repay him for the $35,000 he loaned for the startup of the business.

The plaintiff occasionally does hair cutting and styling for friends and relatives.   The credible evidence is that she does not receive compensation for doing so.

The plaintiff has no retirement assets.   She has a life insurance policy with no cash value having a death benefit amount of $200,000.

The court has considered the needs of the parties' child Jade (as more fully set forth below).   The credible evidence is the plaintiff is the primary caregiver and does not have the time or ability to provide the care the child needs and to work.   The court does not find it appropriate to attribute an earning capacity to the plaintiff at this time.

The defendant also has some health issues.   He suffers from diabetes and is insulin dependent;  he wears an insulin pump and has been hospitalized for complications from the diabetes.   The defendant also has high cholesterol and high blood pressure.

The defendant retired from the state of Connecticut department of motor vehicles in October 2011.   He has a pension from the State of Connecticut which is in pay status.   The defendant current receives a weekly gross pension payment of approximately $1,002.   His net weekly income after taxes from his pension is $904 and after paying the health insurance premiums for the family the weekly net is approximately $884.

After his retirement from the state of Connecticut, the defendant went to work for DATTCO and he remains employed by DATTCO as a senior security director.   His gross weekly pay is approximately $1,379 and his weekly net income after mandatory deductions (and without regard for the deductions shown on his financial affidavit for life insurance and disability insurance) is $862.

The defendant has a state employee deferred compensation plan (403(b)) and the present balance of such account is approximately $300.   The defendant withdrew approximately $1,600 from the same during the pendency of the action to pay for medical expenses and car repairs.

In addition, the defendant has a 401(k) account at DATTCO which has a balance of approximately $1,791.

The defendant has the following death benefits in place from life insurance:  $18,125 through Prudential (this policy has a cash value of approximately $2,774);  $150,000 through DATTCO and $42,500 through the State of Connecticut (there is no cash value for the coverage provided through DATTCO or the State of Connecticut).

3. The marital residence, motor vehicles and personal property.   The parties acquired a home on Brimfield Road in Wethersfield approximately one year prior to the marriage.

The defendant denies that the plaintiff's family contributed to the down payment for the acquisition of the Brimfield Road property.   The plaintiff's more credible evidence is that her family loaned the parties approximately $30,000 to serve as the down payment.   No portion of the loan has been repaid.

The Brimfield Road house was sold and the proceeds rolled into the purchase of a lot at 57 Old Mill Road, Wethersfield.   The parties then built the marital residence on that lot.   The defendant and his friends constructed much of the home and performed renovations thereto during the marriage.

The plaintiff's appraiser valued the martial house at $285,000.   The appraiser used houses that are significantly older than the marital residence as a reference point due to the deferred maintenance needs of the home;  the home is nineteen years old and the comparable homes used were thirty-four, thirty-eight and fifty years old.   They were also, in general, significantly smaller in size.

Although the backyard of the home is on a golf course it is located along the driving range and a net separates the yard from the range.   Balls have careened from the range and hit the home.

The plaintiff also had a market analysis performed by an agent for William Raveis real estate.   She suggested a listing range of $319,900 to $329,000.   She thought the home might sell for $290,000 to $310,000—an amount obviously higher than the value put on the home by the plaintiff's appraiser.

The defendant's appraiser valued the home at $390,000.   While the defendant's appraiser also used a home as a comparable that was significantly older than the marital residence (in addition to other homes closer in age), it was still a closer comparable in terms of age than those used by the plaintiff's appraiser.

It is within the court's discretion to accept or reject the opinions of expert witnesses.  Evans v. Taylor, 67 Conn.App. 108, 113 (2001).

The court finds the value of the home to be $390,000.

The marital home is subject to a mortgage having an outstanding principal balance of approximately $125,000.   The equity in the home is therefore approximately $265,000.   The court finds the plaintiff's parents provided funds for the down payment of the prior home in the approximate amount of $30,000, which amount was rolled into the equity of the marital home.

4. Breakdown of the Marriage.   The parties dated for eight years before they were married.   They did not live together prior to the marriage.

The plaintiff testified that the marriage broke down in 2006 or 2007;  in April 2006 she stated the parties stopped communicating and they no longer had a sexual relationship after April 2007.

The defendant testified the marriage broke down in 2005 or 2006.   At Easter in 2006 he gave her a present that he subsequently found in the garbage which, in his mind, cemented the breakdown.

In 2008, the defendant prepared notes for a potential profile for an on-line dating site.   He testified he had never posted on such a site.

The defendant admitted to following plaintiff after April 2006 as he was concerned that she was having an affair;  he acknowledged following her on more than one occasion.   The plaintiff credibly testified that he routinely followed her around during the marriage and listened in on her telephone conversations.   There was no credible evidence that the plaintiff was ever engaged in an affair.

The credible evidence is that the defendant was engaged in one or more extramarital affairs in the spring of 2012.   The marriage had clearly broken down by that time.

The complaint was served on May 17, 2012.   The defendant had moved out two days earlier—on May 15, 2012.

The court finds the family has been under stress and dealing with the difficult circumstance of caring for their youngest child.   The plaintiff has been unable to work and had to sell the business she had started.   She rarely takes time away from the house.   The defendant believes she could free herself up more than she does—but he does acknowledge that Jade, basically, needs 24/7 care.

The court finds the marriage has broken down irretrievably.

The court finds the defendant to bear the greater fault.

5. Needs of Jade. Jade has a condition known as McCune–Albright Syndrome.   She has been in physical therapy since she was two years old.

Jade has had hip surgeries and in August 2009 her spine was fused.   She is very susceptible to bone fractures.   Her joints do not move well and can get off center.   She suffers from chronic pain and is dependent on a wheelchair for such mobility as she can enjoy.   She spends the majority of her time in bed or in the wheelchair.   She can be left alone for short periods of time only.

Jade suffers from depression arising from her chronic disability.   She also has difficulty processing things quickly.

When able she attends school for a significantly shortened day.   The plaintiff generally picks her up from school after a couple of hours on the days that Jade does attend school.

Wethersfield High School allowed her to “walk” at graduation time in 2013, but she has not earned her high school diploma.

Her current physical therapist (who has been treating Jade since she was two years old) no longer participates with Anthem Blue Cross, the health insurance carrier for the defendant and the carrier providing coverage for Jade.

The state of Connecticut has confirmed (exhibit 3) that the defendant can maintain Jade as a dependent on his health insurance coverage beyond age 26;  she can stay on his policy for her lifetime or until such time as she is no longer disabled.   She receives some social security benefits.

The court finds that Jade has a physical disability as defined in General Statutes § 46a–51(15).   She has a chronic impairment and relies on a wheelchair.

The plaintiff testified that she has been appointed as Jade's conservator through the Newington Probate Court.

ADDITIONAL FINDINGS AND ORDERS

The court makes the additional findings and enters the following orders:

A. Jurisdiction and Dissolution

The court has jurisdiction in this matter which has been pending for more than ninety days.

The allegations of the complaint have been proven to be true.   The marriage has broken down irretrievably.   A decree of dissolution may enter.

B. Post–Majority Education

The court finds that if the parties had remained an intact family it is more likely than not that they would have contributed support to the children for higher education or private occupational school.

Two of the children are age twenty-three or older and the court may not enter an order for ongoing educational support for those children.

As to Dana, the court orders that the parties equally share the cost of post-majority education for up to four full academic years and until Dana is twenty-three, provided however, the provisions of General Statutes § 46b–56c are met and subject to the limitations set forth in such statute, including, without limitation, the provisions of subsections (d), (e) and (f) thereof.   The terms of this order are modifiable.

As to Jade, pursuant to the provisions of General Statutes § 46b–56c, the court reserves jurisdiction to determine educational support and either party may file a future motion or petition for an educational support order.

The court declines to enter any order reimbursing the plaintiff for costs she expended for Nicole (who has reached the age of twenty-three) and/or for Dana prior to the date of dissolution.

C. Child Support

Based on the findings above, and after considering the provisions of General Statutes § 46b–84(c), the court orders the defendant to continue to pay child support for Jade until she reaches the age of twenty-one.   Pursuant to such statute, the child support guidelines established pursuant to General Statutes § 46b–215a do not apply.

After considering the credible testimony and evidence submitted to the court, the court orders the defendant to pay child support in the amount of $200 per week.

The child support is to be paid by immediate wage withholding.

D. Alimony

Based upon the facts of this case, and after consideration of applicable law, including without limitation, the statutory factors set forth in General Statutes § 46b–82, the court awards alimony to the plaintiff wife as follows:

Alimony stream A:  The defendant shall pay alimony in the amount of $325 a week until the earlier to occur of (i) the death of either party or (ii) the remarriage of the plaintiff.   Alimony shall be modifiable in accordance with the provisions of General Statutes § 46b–86(b).  The alimony shall be modifiable as to amount, but not as to duration.   The amount of alimony payable to the plaintiff is modifiable without a showing of a substantial change in circumstances at such time as Jade turns 21 years of age and, if sooner, at any time that the child support payable for Jade is modified.

The court orders the alimony under Alimony Stream A to be payable by immediate wage withholding.

Alimony stream B:  The defendant shall pay alimony to the plaintiff in the amount of $1 a year modifiable only in the event the plaintiff fails to receive one-half of the defendant's State of Connecticut pension benefit as set forth in Section F.5.(a) below.

Alimony stream C:  In the event the plaintiff elects to receive health benefits through the defendant's insurance plan by making a COBRA election, the defendant shall pay directly to the provider, as additional alimony, one-half of the cost for the plaintiff's COBRA medical coverage.   The term of alimony stream C shall terminate on the earlier to occur of (i) the remarriage of the plaintiff;  (ii) the death of either party;  (iii) the election by the plaintiff to obtain medical coverage through any means other than the COBRA election;  and (iv) the date that is thirty-six months from the date of judgment.   The plaintiff shall pay the other half of the cost of COBRA in accordance with Section E below.

The court awards alimony to the defendant payable by the plaintiff of $1 a year modifiable only in the event the plaintiff fails to pay the first mortgage on the marital home as set forth in Section F.1. below and the defendant incurs liability in connection therewith.

E. Medical Insurance for the Parties and the Child and Allocation of Unreimbursed Medical Expenses for Jade

The defendant shall continue to provide medical insurance for Jade through the State of Connecticut at his sole cost and expense for Jade's lifetime.   The plaintiff shall be provided with an insurance card for Jade.

The parties shall equally share the cost of Jade's unreimbursed medical bills, including physical therapy.   The plaintiff shall submit to the defendant on a monthly basis a copy of all of the invoices for Jade's unreimbursed medical expenses and he shall pay his one-half share within fifteen days of receipt of the invoices.

To the extent the defendant owes any money to the provider or to the plaintiff for his share of the physical therapy expenses incurred pendente lite, the defendant shall pay the same within sixty days of the date of the judgment.

The defendant shall provide medical insurance for Nicole and Dana until they reach the age of 26 or, if sooner, such time as such child(ren) obtain their own health insurance coverage through employment or otherwise.

Except as set forth above, including as set forth in subsection D. above, the parties shall maintain, at their own expense, medical and dental insurance coverage for themselves.

F. Division of property

“The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well ․ General Statutes § 46b–81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property.”  (Citations omitted;  internal quotation marks omitted.)  Roos v. Roos, 84 Conn.App. 415, 420, cert. denied, 271 Conn. 936, (2004);  see Clark v. Clark, 115 Conn.App. 500, 505 (2009);  also see General Statutes § 46b–81.

In coming to a division of the property, the court has crafted a mosaic and has also considered the requests of the parties for the allocation of assets and liabilities.

1. Marital home

Subject to the terms below, the court awards the marital home to the plaintiff and the defendant shall quit claim his interest in the home to the plaintiff within thirty days of the date of judgment.   The court awards the defendant $100,000 in equity of the home.¹

The plaintiff shall execute a note payable to the defendant in the principal amount of $100,000.   The note shall not provide for any installment payments of principal or interest.   The note shall be payable in full on the date (the maturity date) which is the earlier to occur of (i) the death or remarriage of the plaintiff;  (ii) the date Jade no longer primarily resides in the marital home;  (iii) the date the home is sold;  and (iv) the date that is six years from the date of judgment.   The note shall be secured by a mortgage on the property that will be subordinate to the existing first mortgage.   In the event that during the term of the $100,000 note, the plaintiff elects to refinance the existing first mortgage, the defendant shall execute a subordination agreement reasonably requested by the mortgagee provided, however, the amount of the equity remaining after the refinance (i.e., the equity remaining after the subtracting the principal amount of the new mortgage from the appraised value of the home without regard to the mortgage held by the defendant) is not less than $135,000.   The foregoing provisions in no way obligate the defendant to sign on to any refinance of the existing debt.

The note and mortgage shall be prepared by defendant's counsel.   Each party shall equally bear the expenses in connection with the drafting and review of the documents.   The defendant shall record the mortgage and pay the cost thereof.

Until the $100,000 note is paid in full, the plaintiff shall timely pay the existing first mortgage and shall indemnify and hold the defendant harmless from all liability in connection therewith.

In the event the plaintiff fails to pay the principal of the $100,000 note payable to the defendant when due, interest shall accrue at 4% per annum from and after the maturity date until paid.   The defendant shall be entitled to attorneys fees in connection with any action taken to enforce the note and mortgage upon the default by the plaintiff.

If the note has not been paid within 90 days of the maturity date, the court orders the home to be immediately placed on the market for sale with a listing agent having at least ten years of experience in the geographic area.   The property shall be listed at the listing price suggested by the listing agent.   The plaintiff shall accept any offer within 5 percent of the listing price.   Every sixty days, the plaintiff shall review the listing price of the property with the agent and the listing price will be reduced to the greater of (i) the revised listing price suggested by the listing agent or (ii) 95 percent of the prior listing price.   The plaintiff shall actively participate in the sale of the property with the intent of selling the property as quickly as possible.

The court shall retain jurisdiction over the terms and conditions of the sale.   Upon the closing of sale of the marital home, the sale proceeds shall be utilized to pay in full the following expenses:  all conveyance taxes, real estate sales commissions, legal fees for closing of sale, and other normal expenses incurred in connection with the sale and the amount due to pay off the mortgages (including the mortgage held by the defendant), taxes, liens and judgments on said premises and the remaining proceeds shall be the property of the plaintiff.

2. Personal property

(a) The plaintiff shall retain the 2004 PT Cruiser and the 1999 Ford Escort.   The defendant shall retain the 1997 Chevy Tahoe and the 1998 Dodge Caravan.   Each party shall indemnify and hold the other harmless for all liability and expenses in connection with the vehicles awarded to each.

(b) Each party is awarded their own jewelry and clothing.

(c) The defendant is awarded the shop equipment, wood working tools and wood working projects that remain unfinished.

(d) Except as above set forth, the parties shall divide the personal property between themselves.   The division of items of personal property not awarded by the court above and not agreed to by the parties will be mediated by an agreed third party (and if the parties are unable to agree, the court will appoint a mediator).   Each party is responsible for one-half of the fees of the mediator.   The Court will retain jurisdiction to oversee any such distribution of personal property.

3. Bank accounts

(a) The plaintiff and defendant shall retain as her/his sole property free and clear of any claim by the other their respective bank accounts as shown on their financial affidavits.

4. Life insurance

To the extent available at a reasonable cost, the defendant shall maintain life insurance in an amount of not less than $190,000 naming the plaintiff the irrevocable beneficiary thereon, for so long as the defendant has an alimony obligation to the plaintiff.

The amount of the life insurance on the defendant's life shall be modifiable, based upon a change in income.

To the extent the same is available, the defendant shall provide proof of maintenance of said coverage and the payment of applicable premiums therefore to the plaintiff on or before September 30 of each year.   The defendant shall also notify the insurance companies to send to the plaintiff duplicate notices of any potential lapse or cancellation for non-payment of premium for such policies.

The defendant shall retain the cash value available in connection with the Prudential life insurance policy.

5. Retirement Assets

(a) Defendant's retirement benefit currently in pay status

The defendant is the recipient of a pension from the State of Connecticut.   The credible evidence is that at the time of his retirement the defendant elected a 50% survivor's benefit for the lifetime of the plaintiff as the contingent annuitant.

The court orders that the plaintiff as the alternate payee shall receive, by domestic relations order (DRO), and the defendant is directed to pay (or cause to be paid) benefits to the alternate payee as a marital property settlement, an amount equal to fifty (50%) percent of the defendant's gross monthly retirement benefit, valued as of the date of dissolution, as such payment may be adjusted in accordance with the pension plan provisions.   Each party shall pay all applicable federal and state income taxes on the payment so received.

The DRO shall be prepared by Attorney Elizabeth McMahon.   The cost of the preparation of the DRO shall be borne equally by both parties.   Both parties and their counsel are ordered to sign all documents required to effectuate the foregoing orders so as to cause the commencement of benefit payments to the plaintiff as soon as is practicable after the date of this judgment.

Until the benefit is paid directly to the plaintiff as the alternate payee, the defendant shall pay to the plaintiff one-half of the gross monthly retirement benefit.

The Court shall retain jurisdiction over this matter to review, approve and enter as an order of the Court the DRO and the court will retain jurisdiction to amend this order only for the purpose of establishing or maintaining its validity and enforceability.

(b) Defendant's 403(b) plan and Dattco 401(k)

The defendant shall retain his 403(b) plan with the State of Connecticut.   The defendant shall convey to the plaintiff one-half of his DATTCO 401(k) plan as of the date of dissolution together any market gains or losses incurred from the date of dissolution to the date of transfer.   The transfer shall be made by means of a qualified domestic relations order (QDRO), as applicable and to the extent necessary.

The QDRO shall be prepared by Attorney Elizabeth McMahon.   The cost of the QDRO shall be borne equally by the parties.   The Court shall retain jurisdiction over this matter to review, approve and enter as an order of the Court the QDRO.

G. Income Tax Filings and Tax Exemptions

For the past tax years, the parties may elect to file joint or individual tax returns.   If the parties agree to file joint returns, each party shall indemnify the other from any liability resulting from a failure to accurately disclose their respective income, earnings, distributions or dividends.   If the parties file joint federal and state income tax returns, the parties shall share any refund and/or any liability equally.   If the parties do not agree to file jointly, the defendant shall claim Jade as an exemption and take all of the home-related deductions (such as mortgage interest and real estate taxes paid during the applicable tax year) on his individual returns for such tax years.

From and after the 2014 tax year, and for so long as Jade is eligible to be taken or claimed as a tax exemption, the defendant shall take such exemption in even years and the plaintiff shall take such exemption in odd years.

The plaintiff shall take all home-related deductions for 2014 forward.

To the extent necessary, for each tax year each parent shall deliver to the other a fully executed IRS form 8322 (or successor form thereof) allowing such parent to take the tax exemption for Jade, so long as she remains as a qualifying child for tax purposes.

H. Tax Indemnification

Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that party's income or deductions.

I. Tax Information

For so long as the defendant has an obligation to pay child support, the parties will annually exchange their W–2s, 1099s, K–1 and similar forms by February 15 each year and will provide each other with their income tax returns within five days of filing.

J. Fees

Except as set forth below, each party shall be responsible for the payment of their respective attorneys fees and costs incurred in connection with the prosecution and defense of the dissolution proceeding.

K. Incorporation of Orders

The orders of the court, Westbrook, J., entered on October 23, 2012 (# 119) are incorporated in and made a part of the judgment.

L. Effectuation of Orders

Each party is ordered to sign whatever documents are necessary, and as presented to them by the other party, to effectuate these orders within ten days of presentment.

Unless otherwise specifically set forth herein, these orders are effective immediately.

M. Pending Motions

1. Plaintiff's motion for contempt filed September 12, 2013(134).   When an allegation of contempt is made our courts have noted that “[un a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, (2001).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263, 271 (1995).  “The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court ․ One cannot be placed in contempt for failure to read the court's mind.”  Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).  “Noncompliance alone will not support a judgment of contempt.”   Prial v. Prial, 67 Conn.App. 7, 14 (2001).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful (sic).”  Wilson v. Wilson, supra, 38 Conn.App. 275–76;  Niles v. Niles, 9 Conn.App. 240, 253–54 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).

“[E]ven in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988);  see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, cert. denied, 210 Conn. 802 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).

“It is elementary that court orders must be complied with until they are modified by a court or successfully challenged.”  Eldridge v. Eldridge, 244 Conn. 523, 530 (1998).

The court finds that the order of June 20, 2012(105) provided only that the plaintiff was to pay all household bills, except for the physical therapy.   The order (which approved an agreement of the parties) does not clearly or unambiguously order the defendant to pay the physical therapy bills for Jade.

Further the court does not find the defendant willfully withheld insurance reimbursement checks from the plaintiff.

The motion for contempt is denied.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. The court has found the value of the home to be $390,000 and the principal amount of the mortgage thereon to be approximately $125,000 resulting in equity of $265,000.   The court attributes $30,000 of the equity to the funds provided by the plaintiff's father and so attributes $30,000 of equity “off the top” to the plaintiff leaving a net equity to be allocated between the parties of $235,000.   The court has awarded approximately 43% of the equity to the defendant and the balance to the plaintiff..  FN1. The court has found the value of the home to be $390,000 and the principal amount of the mortgage thereon to be approximately $125,000 resulting in equity of $265,000.   The court attributes $30,000 of the equity to the funds provided by the plaintiff's father and so attributes $30,000 of equity “off the top” to the plaintiff leaving a net equity to be allocated between the parties of $235,000.   The court has awarded approximately 43% of the equity to the defendant and the balance to the plaintiff.

Olear, Leslie I., J.