Robert V. LaVallee v. Pauline A. LaVallee (2014)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' 29–year marriage.   The action was commenced by complaint dated March 6, 2012 and returnable to the court on March 20, 2012.

The matter was tried before the court on January 28 and 29, 2014.   The court has considered all the credible evidence presented to it along with its observation of the demeanor and attitude of the parties.   All the exhibits have been carefully reviewed and considered, as well as relevant common law, including, without limitation, the statutory criteria set forth in General Statutes § 46b–82 as to assignment of alimony and § 46b–81 as to assignment of property and transfer of title.   The court has carefully considered the respective criteria for orders of alimony, property division and payment of counsel fees, and has unsealed financial affidavits.   The findings of fact made by the court have been made by a fair preponderance of the evidence.

JURISDICTION

The parties lived in the State of Connecticut for at least one year before the filing of the dissolution complaint.   The parties have not been recipients of state aid.   The court finds that the allegations of the complaint are proven and true.   The parties' marriage has broken down irretrievably with no hope of reconciliation.   All statutory stays have expired.   The court has jurisdiction over this matter.   Both plaintiff and defendant are represented by counsel.

PENDING MOTIONS

On October 24, 2012, the parties entered into a Pendente Lite Stipulation which was ordered and adopted by the court on the same day (# 107).   Pursuant to the stipulation, the parties agreed “that each shall receive $2,000 weekly gross salary from the family business effective the week ending October 26, 2012.”   On September 15, 2013 the defendant wife received her last $2,000 from the business due to plaintiff's failure to issue payment.   The defendant filed a Motion for Contempt and Counsel Fees, Pendente Lite dated October 25, 2013 (# 115) alleging, among other things, plaintiff's willful failure to obey the court order of October 24, 2012.

During the pendency of the action, the plaintiff, in violation of the Automatic Orders, canceled the health and automobile insurance policies as they pertained to the defendant.   The defendant was unaware of the plaintiff's action.   While the defendant was without automobile insurance, she was involved in a minor automobile accident in South Carolina.   Pursuant to a Motion for Contempt for Violation of the Automatic Orders dated May 22, 2013 (# 110), the parties entered into an agreement on May 29, 2013.   Among the orders approved and adopted by the court:  “defendant will provide invoice showing repair cost for auto, which shall be paid by plaintiff.”

The defendant provided the required invoice to plaintiff, but as of the date of trial, the plaintiff has refused to pay the expenses relative to the repair of the automobile driven by defendant, a 2008 Mercedes C320.¹ Additionally, the plaintiff has refused to pay the subrogation claim owed to The Hartford.   The defendant raised these issues in her aforementioned Motion for Contempt (# 115), alleging plaintiff has willfully failed to comply with the court order.

The plaintiff filed a Pendente Lite Motion for Modification dated August 12, 2013 (# 114) requesting a modification of the October 24, 2012 order requiring a salary payment of $2,000 weekly to each of the parties citing “the business can no longer pay salaries in the agreed upon amount, and the defendant is residing with an unrelated male.”

A. Relevant Facts

The parties were married on August 11, 1984 in West Hartford, Connecticut.   They have two adult children born during the course of the marriage.   The defendant wife is 61 years old and in good health.   She obtained a bachelor's degree in psychology from Central Connecticut State University in 1975.   She was employed as the director of adult Day Care at St. Mary Home at the time of her marriage and held the position for a short time thereafter until the birth of the parties' daughter.   She would occasionally assist her husband at the family business as their children grew older.

The defendant's only means of support is the weekly $2,000 draw she receives from the family business.   Because plaintiff has not paid the defendant the $2,000 since September 15, 2013, defendant removed $25,000 from a jointly held account at Simsbury Bank.

The plaintiff husband is 67 years old.   He obtained his GED while serving in the armed services in 1968.   He attended Middlesex Community College and Michigan State University but never received a degree.   In 1972 he started a business, Lavallee Overhead Door. The business engages in the sales and service of overhead doors;  75% of the business derives from commercial work and 25% from residential work.   Plaintiff receives a weekly $2,000 draw from the family business.   He also collects social security benefits in the amount of $527 per week.   He testified that during the pendency of the action he kept $16,000 under the mattress of his bed.   He has spent the money on himself.   He has $4,000 remaining that is currently kept in a drawer in his bedroom.

B. The Marriage

The parties' marriage did not commence on good grounds.   Plaintiff testified that while on their honeymoon, his wife had morning sickness and took a pregnancy test that revealed she was pregnant.   He stated that he believed his wife knew before the wedding that she was pregnant and failed to tell him.   Plaintiff testified that he felt “duped” by his wife and it made him question her credibility.   He claims that she then “deceived” him by getting her name on the title of the West Hartford home just after their wedding.   The birth of their daughter was also a source of friction between the parties according to the plaintiff husband.   He testified that their daughter was premature and his wife became seriously ill with preeclampsia.   Although his wife recovered and was discharged from the hospital, the child remained hospitalized.   The defendant desired to stay at the hospital with the child and plaintiff wanted his wife home.   He alleges that defendant repeatedly told him he did not love their daughter.

Plaintiff did not paint a flattering picture of his wife during his testimony.   The plaintiff was unable to point to a time in his marriage when he was happy.   He testified that there existed a great deal of friction in the marriage.   He stated that he and his wife argued about money until he finally relinquished the family budget to her.   He claims he never got to know his children because of his wife's interference.   He was unhappy with her decision to no longer work outside the home after the birth of their daughter although the defendant testified it was a joint decision and he did not complain of the decision during the course of the marriage.   When asked to think of a positive characteristic concerning his wife, plaintiff's first response was, “she bought the kids whatever they wanted.”

Conversely, the defendant testified that her husband was a “pretty good” father.   She said that the plaintiff shared his love of sailing with their children and taught them confidence through sailing.   He participated in Scouting and the family shared many positive experiences during their vacations.   Defendant asserted that her husband has a strong work ethic and is committed to the business.

In 1998 plaintiff sought counseling to deal with the issues of the marriage.   The counseling was short-term and not of any assistance.   Defendant testified that the plaintiff had a penchant for strip clubs.   Both parties testified that during the 2000/2001 time-frame, the plaintiff came home intoxicated one evening and emptied his pockets of $1,200 in receipts.   The receipts were for monies expended at a strip club in increments of $125 for access to the “back room.”   The defendant testified that in 2005 she confronted her husband about the frequency of the strip club visits.   He left the marital home for a week following the confrontation until she visited him at work in an attempt to reconcile.   She claims that they both analyzed receipts from the strip clubs over the period of one month and realized that he had spent approximately $10,000.

The defendant wife also testified that she was concerned with the plaintiff's gambling and urged him to go to Gamblers Anonymous.   She testified that he attended 3 or 4 sessions and did not return thereafter.   She also testified that she was concerned with the amount of alcohol consumed by the plaintiff.   In 2008 that plaintiff was diagnosed with herpes which further complicated the marital relationship.²

The marriage did not improve when the parties attempted their retirement to South Carolina.   The plaintiff joined a golf club and played four to five times per week while the defendant enjoyed working around the home.   Plaintiff testified that he had no significant relationships with anyone in South Carolina and considered himself depressed.   He consulted an attorney about the possibility of divorce but did not pursue the idea.

The final blow to the marriage was an incident that occurred in December 2011.   The parties became involved in an argument over plaintiff's refusal to go to dinner with his wife.   Defendant then decided she would dine with her daughter and took the business credit card from the plaintiff's wallet.   This caused the argument to escalate and eventually defendant allegedly struck the plaintiff with a bottle.   Plaintiff left the marital home with some of his belongings.   He then reported the incident to the Avon police who arrested the defendant.   The charges against the defendant were eventually “dropped.”

The defendant became romantically involved with a physician while residing in South Carolina.   The physician moved into the South Carolina home in November 2012.   Defendant testified that her paramour did not pay for any household expenses.   Rather, the defendant enumerated several vacations, including two cruises and a trip to Ireland that were paid by her paramour.   The two no longer reside together although the defendant indicated that they were working on their relationship.

The plaintiff indicated that his wife's relationship with the physician was one of the reasons he ceased to pay his wife her court ordered weekly draw.³  He testified that he felt it unfair that he should be working at the business while his wife was enjoying herself and going on trips.

C. Family Business

Sometime during the course of the marriage, the plaintiff made the defendant wife 49% owner of Lavallee Overhead Door. He is the sole owner of the remaining 51%.   He testified that he gave his wife the 49% ”under duress” and because she would not stop nagging.   In 1984 the commercial property on which the business is located was purchased.   The property, 151 Strong Road in South Windsor, has a fair market value of $480,000.

In 2008 the plaintiff made the decision that he would “step away” from the business and retire.   He left one of his commercial salesmen in charge of running the daily operations of the business.   The plaintiff and the defendant went to South Carolina and the salesman continued the operation of the business until May 2010 when the parties returned to Connecticut.   The plaintiff returned to Lavallee Overhead Door where he found the business in a state of disarray.   The plaintiff learned that the business was in “dire straits with the salesperson largely absent and making questionable financial decisions.”   The plaintiff decided to return to the business to restore its financial viability in the event he wished to sell the company.

The plaintiff husband and defendant wife were not in agreement as to what should happen with the business in the event plaintiff permanently retired.   The plaintiff's desire was to sell the business.   The defendant believed that plaintiff should work with and train their adult daughter in the running of the business.   The daughter was apparently a willing participate in this business venture.

The parties' daughter went to work with her father for a period of time from approximately July 2011 to November 2012.   The plaintiff testified that the plan did not succeed because his daughter was young, spoiled and not psychologically able to run the business.   He stated that his daughter left the business one day and never returned.   Conversely, the defendant testified that plaintiff's desire was to sell the business.   She testified that her husband did not want to transition the business to their daughter.   Defendant believed that by transitioning the business to their daughter, they could provide for their daughter while maintaining a revenue stream for themselves.   She believed their daughter who holds a MBA was capable of performing the job.   Defendant wife testified that her husband placed his daughter in the service manager job.   She believed this was a difficult position for a beginner and that her husband's ultimate goal was to force their daughter out.   Plaintiff and the daughter attended therapy sessions in order to better communicate but these sessions were fruitless due to plaintiff's refusal to follow through with the recommendations.

The plaintiff has a current offer of $450,000 for the business but as of the date of trial no contract had been signed.   Although the plaintiff's desire is to sell the commercial lot and business together, he testified that this was unlikely to happen.   The business and commercial lot if sold together have an approximate value of $930,000.   Plaintiff also testified that a portion of the commercial building is occupied by tenants.   The current rental income generated from the tenant is $8,050 per month.

The business currently pays the automobile insurance premiums and health insurance premiums of the parties.   The plaintiff also pays miscellaneous expenses from the business account such as his golf club memberships, cell phone and gasoline.   He alone has access to the business credit card and is able to charge expenses such as meals and clothing.

D. Marital Residence

Plaintiff testified that prior to the marriage he owned a home in Lebanon, Connecticut.   He lived there with defendant before their marriage.   He decided to sell the Lebanon home and claims to have made a $75,000 profit.   He testified that with the $75,000 he intended to purchase 18 Pine Road in West Hartford in his name alone.   He acknowledges that he needed an additional $5,000 to close on the home and defendant's grandfather gave them the loan.   The home was ultimately purchased in both parties' names.   He is not sure how this happened and alleges that he asked the defendant to quitclaim the home to him but she refused.   He did not further pursue the issue of the title of the West Hartford home.

In 1991 the parties decided to purchase a lot on Brian Lane in Avon. The parties received a telephone call from their real estate agent while on vacation in Michigan in December.   The agent expressed urgency relative to placing a deposit on the property and defendant wrote a check in the approximate amount of $100,000 as deposit on the lot.   She testified that she paid a total of $240,000 toward the purchase of the lot and construction of the Brian Lane home from money inherited from her grandparents' estate.

The parties decided to sell the Avon home in 2010.   Defendant wife testified that she spent approximately $30,000 on the home in order for it to sell.   Specifically, she testified that she paid for two furnaces, 2 air conditioning units, drive way repairs, chimney repointing, window re-stripping and floor repairs.   Most of these repairs were paid with a credit card.   Defendant claims that she continues to pay the minimum balance on the card and that her plaintiff husband has refused to pay toward the balance.

When the house was placed on the market, it was in need of heating oil.   Defendant contacted Viking Fuel Oil and arranged for a delivery.   The approximate amount of the bill from Viking was $800.   Mrs. Lavallee did not pay the bill believing that she was overcharged for the delivery.   Her attempts to amicably resolve the disputed bill were futile.   She and Mr. Lavallee were sued in small claims for the outstanding bill.   Defendant was in South Carolina without the financial means to return to Connecticut on the date the suit was scheduled for a court hearing.   She contacted the plaintiff, provided him with the information and defenses he should raise at the hearing.   Defendant testified that she believed their defense to be viable.   Plaintiff husband testified that he did not like the defense and decided not to appear in court on the date of the hearing.   He stated that he “didn't want to get slaughtered.”   He did not inform defendant of his decision not to attend the hearing nor did he seek a continuance.   A default judgment entered in the total amount of $2,481.09.   No payment has been made toward the judgment.

The Avon home eventually sold for over $400,000.   There is presently $377,000 in a joint annuity.

E. South Carolina & Inheritance

Defendant wife was the beneficiary of various distributions from the conservatorship and estate of her maternal grandparents.   These distributions were made from the period between 1990 and 2002.   In total, Pauline Lavallee received $805,318.   She also received from 1997 to 2000 an additional $158,977 from the estate of her mother, Marie Lombard.

Defendant used a portion of the funds to purchase the Avon lot and to help pay for the construction and decor of Brian Lane. It was defendant's idea to purchase a home in South Carolina.   The parties agreed upon a home in Hilton Head, South Carolina.   The house was purchased on April 8, 2002 at a price of $598,000.   The purchase was effectuated through a cash deposit of $381,500 and a mortgage of $210,000.   The parties did not attend the closing and the title of home was in both parties' name.   On July 15, 2002, the plaintiff quitclaimed his interest in the South Carolina property to his wife.   Plaintiff alleges that his wife “nagged” him about the property being in his name and he quitclaimed the property to her so she would stop her complaining.

Defendant alleges that although she and her husband discussed retiring to South Carolina, the increase in their marital discord made the purchase of the South Carolina more important to her in the event their marriage failed, as she would need a place to live for herself and children.   She testified that three months prior to the purchase, she received a $250,000 disbursement from the estate of her grandparents.   This money was used as the down payment on the home.   She used the additional disbursements from the estate to pay the mortgage.   Defendant testified that the timing of the estates' disbursements coincide with the large mortgage payments made on the South Carolina mortgage.   The mortgage was paid in full on January 30, 2003.

Defendant testified that the title to the home was never to be in both parties' names.   Neither party attended the closing in South Carolina.   She testified that when she became aware of the error in title, she immediately insisted that her husband quitclaim all his interest to her and he obliged.   She further testified that a significant portion of the home's furnishing were paid by her inherited funds and that she alone has paid all expenses related to the South Carolina home since the date the parties separated in approximately December 2011.

In approximately 2000, the defendant's father, Carl Lombard, quitclaimed 20% interest in a property located at 74 Old Colony Road in Old Lyme, Connecticut.   The remaining interest in the Old Lyme property is held by defendant's siblings.   The plaintiff testified that he makes no claim to the Old Lyme property.

After hearing the testimony of the parties and reviewing all the exhibits submitted by the parties, the court enters orders as set forth below.

ORDERS

1. Dissolution

The marriage of the parties is dissolved on the grounds of irretrievable breakdown.   The parties are declared single and unmarried.

2. Alimony

No alimony is awarded to either party.

3. South Carolina

The defendant wife shall retain exclusive ownership of 2 Seabreeze Court, Hilton Head, South Carolina and shall be responsible for all expenses relating to said property, including but not limited to real estate taxes, insurance and utilities and shall indemnify and hold the plaintiff harmless in regard to the same.

4. Salary

Until the sale of the business, Lavallee Overhead Door, is effectuated, the plaintiff shall continue to operate the business and pay the defendant wife $2,000 per week in salary.

5. Health Insurance

Until the sale of the business, Lavallee Overhead Door, is effectuated, the plaintiff shall continue to provide health insurance for the defendant.   Upon the sale of the business, each party shall be responsible for the procurement and payment of their own health insurance.

6. Lavallee Overhead Door & 151 Strong Road

Plaintiff shall have 6 months to complete the sale of the business and commercial property.   Upon the sale, all net proceeds shall be held in escrow after the payment of all taxes and customary cost of sale expenses.   The remaining net proceeds shall be divided 51% to plaintiff and 49% to defendant.   If there are shareholders loans owed to plaintiff or defendant and if the loans are repaid, the proceeds shall be divided equally by the parties.   If the business and commercial property are not sold on or before 6 months from the date of judgment, the parties will select a broker and agree to the terms of the sale for both the business and the commercial property.   The proceeds shall be divided as previously set forth above in this paragraph.   Under all circumstances both parties shall keep each other apprised of all developments and exchange all relevant information relative to the sale of the business and commercial property.   The court shall retain jurisdiction of the terms and sale of the business and property.

7. Avon Home

All proceeds from the sale of the Avon marital home currently held in a Simsbury Bank escrow account shall be divided equally between the parties.

8. Retirement Assets

All funds held in the Lavallee Overhead Door Profit Sharing, Ameritrade IRAs and in UBS Financial shall be divided equally by the parties.   If a Qualified Domestic Relations Order is necessary to divide the Profit Sharing Plan, the parties will select an attorney to effectuate the QDRO and share equally in the expense of the attorney.

9. Viking Oil Judgment

The defendant shall pay plaintiff $400 within 30 days toward the Viking Oil judgment.   The plaintiff shall pay the remainder of the Viking Oil judgment within 60 days.

10. Automobiles

The plaintiff shall keep his 2013 Toyota 4 Runner and be responsible for all costs and liability associated therewith, including, without limitation, taxes, insurance and upkeep.   The plaintiff shall forthwith transfer title, free and clear, to the 2008 Mercedes C320 to the defendant and thereafter defendant shall be responsible for all costs and liability associated therewith, including, without limitation, taxes, insurance, registration and upkeep.

11. Credit Card Debt

The plaintiff shall pay the defendant $15,000 toward credit card expenses incurred in preparation for the sale of the Avon home.   Said payment shall be made within 60 days of the date of judgment.

12. Old Lyme Cottage

The defendant shall retain her 20% interest in the Old Lyme Cottage free and clear from any claim by the plaintiff.

13. Personal Property

Each party shall keep the items currently in his/her possession except that plaintiff shall return to the defendant the Tiffany Silverware and defendant's grandmother's sterling silver.   Additionally, the parties shall divide family photographs and family albums currently in their possession.

14. Attorney Fees

Each party shall be responsible for his/her own attorney fees.

15. Pendente Lite Motions

a. Plaintiff's Pendente Lite Motion for Modification dated August 12, 2013 (# 114) is denied.

b. Defendant's Motion for Contempt and Counsel Fees, Pendente Lite dated October 25, 2013 (# 115) is granted.   The court finds that its orders of October 24, 2012 and May 5, 2013 were clear and unambiguous, that plaintiff had actual notice of the orders, that the plaintiff failed to comply with the orders, and that plaintiff's noncompliance was wilful.

c. The plaintiff shall pay the defendant $2,000 for the repair of the Mercedes C320 within 14 days of judgment.

d. The plaintiff shall pay forthwith the total amount of the subrogation claim owed to The Hartford.

e. The plaintiff shall pay to defendant $15,000 in unpaid salary with 14 days of judgment ($40,000 unpaid salary minus $25,000 escrow withdrawal).

f. The plaintiff shall pay to defendant's counsel $5,000 in attorney fees for the wilful contempt of the court's orders.

g. All other pending motions, if any, are hereby denied.

SO ORDERED.

BY THE COURT,

Ficeto, J.

FOOTNOTES

FN1. Title and registration to the Mercedes are in the plaintiff's name..  FN1. Title and registration to the Mercedes are in the plaintiff's name.

FN2. Defendant has been tested on numerous occasions and never tested positive..  FN2. Defendant has been tested on numerous occasions and never tested positive.

FN3. Plaintiff also alleges in his Motion for Modification that the business was no longer able to pay the salaries.   No evidence was introduced at trial to support the business' inability to pay the salaries, other than an unsigned Profit & Loss Year to Date statement dated 8/31/2013..  FN3. Plaintiff also alleges in his Motion for Modification that the business was no longer able to pay the salaries.   No evidence was introduced at trial to support the business' inability to pay the salaries, other than an unsigned Profit & Loss Year to Date statement dated 8/31/2013.

Ficeto, Anna M., J.