Laurie J. Wasielewski v. Timothy N. Wasielewski (2014)

MEMORANDUM OF DECISION

This matter was tried before the court on July 30, 2013, November 20, 2013 and November 21, 2013.   On December 26, 2013 the defendant filed a motion and stipulation to Reopen Evidence (# 141).   This motion was granted on January 15, 2014.   On February 2, 2014 the defendant filed a second motion and stipulation to Reopen Evidence (# 143) which was granted by the court on February 3, 2014.   The stipulation states plaintiff and defendant liquidated and divided a portion of retirement assets reducing the total from $58,000 to $32,183.18.   The plaintiff, defendant and witness testified and exhibits were introduced.   The court has considered all of the credible evidence presented to it and carefully considered the respective criteria for custody, visitation, child support, alimony, property settlement, division of debt and award of counsel fees.   The court makes the following findings of facts and orders.

The parties were married on September 12, 1992 in Keene, New Hampshire.   One of the parties has lived in the state of Connecticut for at least one year prior to bringing this action.

The following children were born to the parties since the date of the marriage:  Anna, date of birth October 1, 1996;  and Jackson date of birth February 5, 1999.

No other children have been born to the wife since the date of the marriage.   The parties are receiving food stamps and Husky health insurance.   The court finds that the marriage of the parties has broken down irretrievably with no hope of reconciliation.

The wife is fifty-three years old and was diagnosed with osteoarthritis and fibromyalgia, one or two years ago.   She is treated by Doctor Tendlu and Doctor Tuttle.   In addition she has suffered from interstitial cystitis and kidney stones since approximately 2003.

Mrs. Wasielewski graduated from Plymouth State College with a BA in Spanish in 1988.   She attended two years of classes towards a degree in Marriage and Family Therapy at Central Connecticut State University in the mid–1990s without completing the program.

Prior to the birth of the children the plaintiff was employed as a secretary for Garlinghouse Company.   After the birth of the couple's two children the plaintiff stayed at home to care for them.

While a stay-at-home mother Mrs. Wasielewski was a Spanish tutor and eventually operated Vaminos LLC an after-school musical Spanish program.

The plaintiff is currently enrolled in the ARC Program to become a Spanish teacher for grades K–12.

The plaintiff initially applied to and was accepted at Central Connecticut State University in a two-year program leading to certification.   She then found a two-year program at the University of Saint Joseph that would lead to a Masters Degree in education qualifying her for better paying positions.   She began this program in August 2012 but dropped out in February 2013.   She discovered that the program would take more than two years because she lacked certain prerequisites.   At the same time the couple's son was hospitalized and she became power of attorney of her elderly mother in Maine who suffers from Alzheimers.   The above combined to convince the plaintiff to leave the program in February 2013.

Thereafter, the wife applied to and was accepted by the ARC Program (Alternate Route to Certification) a one-year part-time program which will give her a teaching certificate by the fall of 2014.   She began the program in the fall of 2013 and should be ready to apply for jobs in late summer 2014.

The wife is currently employed part-time as a substitute teacher while attending the part-time ARC program.   She earns $123.00 gross income per week, plus $32 gross weekly tutoring income and Food Stamps.

Mrs. Wasielewski cashed in an Ameriprise account to pay for the ARC tuition and books of $5,000.   She previously took out a Sallie Mae student loan to pay her tuition at the University of Saint Joseph.

In May 2012, Mrs. Wasielewski cashed in her husband's premarital Northeast Utility stock in the approximate amount of $26,000.   She left $13,000 in the joint account and put $13,000 into her sole checking account.   The $13,000 was used to hire an attorney in Maine in connection with her mother, to hire a divorce attorney and pay for her security deposit rent for the condo she currently occupies.

Mr. Wasielewski, has an Associates Degree in Liberal Arts, a BS in Chemistry and MS in Environmental Science.   In addition, he has taken graduate courses to advance his knowledge in his field.   Mr. Wasielewski has been an environmental scientist specializing in site assessment and remediation for thirty years.

He owns 40% of Advanced Environmental Interface, Inc (AEI, Inc.) His partners, Joseph Suntobase own 40% and Rich Jahne own 20% respectively.   AEI Realty, LLC owns the property the business is located on at 8 Indian Trail, Middlefield, Connecticut and the defendant is a 1/3 member of the limited liability corporation.   There is no mortgage on this property which was paid off in April or May 2013.   The husband spoke to a real estate broker about the sale of his minority interest in the business real estate and was offered little hope of a sale.

The stipulated value of the AEI Realty, LLC commercial property is $366,000.   The defendant's stipulated share of equity is $104,500.   AEI, Inc.'s rent to AEI Reality, LLC ceased once the mortgage was paid off and the money is being used to pay bills and fund salaries.

The defendant approached a bank about refinancing the Middlebury business property and he did not qualify for a loan, although he never filed a formal loan application.   Mr. Wasielewski asked his partners to buy him out but his request was declined as they were not in a financial position to fund a buy out.

Mr. Wasielewski testified AEI Realty, LLC and AEI, Inc. have been trying to rent the unoccupied portion of the commercial real estate for eighteen months with no success.

AEI, Inc. historically paid the defendant over $80,000 per year until 2010 when the business took a substantial downturn.   Mr. Wasielewski received $30,350 from January 1, 2013 through November 15, 2013.   All his partners have suffered the same deduction in earnings during the same period of time.

The defendant teaches part-time at the University of New Haven earning an additional $5,000 the past semester.   There is a possibility, but no guarantee, he will be offered a class to teach in 2014.

The business tax returns were introduced into evidence and demonstrated a reduction in gross receipts from 2010 of $1,329,192 to $600,987 in 2012.   In 2010 the defendant's personal tax return reflects gross income of $82,450 which was reduced to $31,655 by 2012.

Defendant testified that the financial setbacks suffered by AEI, Inc. are the result of a ten-fifteen year change in the environmental science industry.   He explained that most underground storage tanks have been removed and the DEP reimbursements for removal have expired.   The current trend in the industry is away from remediation and in the direction of environmental health and safety.   The defendant does not have experience or training in environmental health and safety.

Mr. Wasielewski testified and provided evidence of an exhaustive job search he has made for both full and part-time jobs.   He has looked for professional jobs and jobs as a laborer earning $20 an hour with no offers.

In 2011 the defendant used his premarital Northeast utility stock to cover family expenses.   When $26,000 remained the plaintiff removed $13,000 leaving defendant with $13,000 to maintain the family home.

Mr. Wasielewski calculated the value of his shares in AEI, Inc. (assets and 90% of accounts receivable) minus (liabilities and accounts payable) and calculated his 1,000 shares are worth $13.00 per share at present for a total of $13,000.   The plaintiff offered no other evidence of value of the company other than a term life insurance policy with a face value of $400,000 purchased when the business was doing well financially.

Mr. Wasielewski suffers from sleep apnea, uses a CPAP machine and takes Klonazipam for anxiety, Metroprolo for his heart, Melatonin for sleep apnea, Bupropion for depression, Amlodipime for esophageal spasms and Abilify for depression.

The defendant testified that family credit cards were utilized to meet household expenses prior to the plaintiff vacating the marital home.   The balance of the Capital One credit card in September 2012 was $8,702.66 minus the husband's legal retainer of $2,387.50 leaving a marital debt of $6,315.16.   The defendant seeks 50% of that balance ($3,157.58) from the plaintiff.

According to the defendant the Chase credit card marital debt balance is $21,634.29 and the wife's 50% share is $10,817.15.   The Exxon Mobil balance is $7,163.82 and the plaintiff's 50% share is $3,581.91.   The couple also owes money to an orthodontist for their son's treatment.

Mr. Wasielewski testified he would like to keep the family home as a source of stability for the couple's son.   The plaintiff had no objection but wanted her share of the equity in the home before the youngest child would graduate from high school.

Fault

Mrs. Wasielewski blamed her husband for his reduced earnings and claimed he should have laid off other employees to increase his earnings.   The defendant testified persuasively he was not qualified to do the work of other employees on the payroll or the employee was paid on a commission basis for generating work for the firm.

Mr. Wasielewski found fault with his wife's failure to look for full-time work and delays in getting her teaching credentials.

The court finds that Mr. Wasielewski has used his best efforts to increase his income from his current amount and to find substitute or additional employment to support the family.

Mrs. Wasielewski has made a circuitous route to her teaching certification with detours along the way.   The couples' poor communications failed to make the wife aware of the family's precarious financial situation in a timely manner.   Delaying the plaintiff's education for her reentry into the job market also contributed to family financial woes.

The purchase of the family home with the increased mortgage payments was made close to the time the husband's business took a downturn.   The retirement assets and credit cards were used to support the family.   As a result this divorce leaves this family short on income and assets and saddled with debt.

The court cannot find that the husband has an earning capacity of $85,000 given the persuasive testimony of the defendant about changes in the industry, the testimony of one of defendant's business partners and the evidence of defendant's exhaustive job search.

ORDERS

1. The marriage of the parties is dissolved on the grounds of irretrievable breakdown.

2. Custody

The Parenting Plan signed by the parties and approved by the court on November 21, 2013 is made a part of this judgment.

3. Alimony

The husband shall pay the wife alimony in the amount of $75.00 per week until September 1, 2014.   Thereafter alimony shall be automatically modified to $1.00 per year.   Alimony shall terminate on the first to occur of the death of either party, the remarriage or cohabitation per the statute of the wife or the husband reaching age sixty-six.

Alimony shall be modifiable if the husband earns more than $40,000 per year.

The parties shall exchange Federal and State income tax returns.   Forms W–2, 1099 and all schedules no later than May 1st each year.

4. Child Support

The court computed Guidelines for child support using the Financial Affidavits submitted by the wife on November 30, 2013 and the husband on November 21, 2013 (guidelines attached).*

The husband shall pay the wife the sum of $199.00 per week until September 1, 2014.   The guidelines will be recomputed once the wife completes the ARC program and obtains full-time employment.   If the wife fails to complete the ARC program and obtain full-time employment the Guidelines shall be computed using the then current minimum wage times forty hours per week.

5. Real Estate

(a.) The family home located at 360 Tolland Turnpike, Willington, Connecticut shall be immediately listed for sale by a mutually chosen multiple listing real estate broker.   The initial listing price shall be suggested by the Real Estate Agent.   Any offer within 5% of the listing price shall be accepted.

(b.) If the house fails to sell within ninety days the listing price shall be reduced by 3% or the amount recommended by the Real Estate Agent.   The court reserves jurisdiction over the sale of the marital residence in the event of a disagreement between the parties.

(c.) The net proceeds shall be divided 50/50 after the payment of the mortgage, conveyance taxes, real estate commission and other customary adjustments.

(d.) If the husband wishes to buy out the wife's interest in the home he shall provide a mortgage commitment letter within sixty days of the date of judgment and pay the wife 50% of the equity in the home within ninety days from the date of judgment.   The husband's efforts to refinance the home shall not delay the listing of the home by a Real Estate Agent.

(e.) The parties stipulated that the value of the defendant's minority interest in AEI Realty, LLC is $104,500.   The interest is not currently marketable.   The defendant shall give the plaintiff a note in the face amount of $52,250 bearing simple interest at the rate of 2% per annum.   The note shall be due and payable five years from the date of dissolution.

6. Retirement Assets

The husband's retirement assets including the TIAA CREF and Fidelity Accounts shall be divided by QDRO or rollover into an IRA in the wife's name.   The parties shall equally share the expense of drafting the QDRO.

7. Debt

(a.) The husband and wife shall be 50% responsible for the following credit card debt, Capital One $6,315;  Chase M/C $21,634;  Citi Exxon $7,163, joint or individual, incurred before September 1, 2012.   The parties shall have ninety days from the date of judgment to transfer the debt to credit cards in their own names.   The plaintiff and defendant shall indemnify and hold the other harmless from the other party's share of the debt.   The court considers the division of debt to be in the nature of support and nondischargeable in bankruptcy, unless transferred to credit cards in individual names.

(b.) The parties shall be equally responsible for their son's orthodontist bill and shall make arrangements to be billed directly for his/her 50%.

8. Life Insurance

The defendant shall maintain his existing life insurance policy in the amount of $100,000 naming the plaintiff and minor children legal beneficiaries until defendant's alimony obligation terminates and each child reaches the age of twenty-three.

9. Automobiles

The plaintiff and defendant shall keep as his/her sole property the automobiles they are currently driving.   Title to the vehicles shall be promptly transferred.   The plaintiff and defendant shall be solely responsible for any loans, personal property taxes, registration and insurance for the vehicle he/she retains.

10. Tax Returns/Dependency Exemptions

(a.) The husband and wife have agreed to file joint 2012 and 2013 federal and state income tax returns.   They will equally divide any refund and/or equally contribute to any outstanding tax liability.

(b.) Each party shall be entitled to take one child as a dependant for federal and state income tax purposes.   When Anna is no longer available to be claimed as a dependant the parties shall alternate claiming Jackson with the wife taking the exemption in even numbered years and the husband taking the exemption in odd numbered years.

11. Medical Insurance

The husband and wife shall maintain medical and dental insurance for the minor children if it is available to them at a reasonable cost, defined as not exceeding 7.5% of his/her net income.   If insurance is unavailable the parties shall ensure the children are covered by Husky medical insurance.

The parents shall divide unreimbursed medical, dental, optical, orthodontic and psychological/psychiatric expenses pursuant to the child support guidelines currently 51% by mother and 49% by father.

The plaintiff and defendant shall each be responsible for their own medical insurance and unreimbursed expenses.

12. Post–Majority Educational Support

The parties would have contributed to the cost of their children's post-high school education if they remained married.   The court shall reserve jurisdiction to enter orders of post-majority support pursuant to Connecticut General Statutes § 46b–56c.

13. Personal Property

The parties have divided their personal property to their mutual satisfaction.

14. AEI, Inc.

The current value of the defendant's interest in his business is $13,000.   The defendant shall give the plaintiff a note and mortgage on his share of the business property in the amount of $6,500 bearing simple interest at the rate of 2% per annum.   The note shall be due on the first to occur of the sale/termination of the business, the defendant's retirement or termination as partner or seven years from the date of judgment.

BY THE COURT,

Holly Abery–Wetstone

*[Editor's Note:  The referenced Guidelines, pg. 8, par. # 4 has not been reproduced.]

Abery–Wetstone, Holly, J.