Encarnocoa Foster v. Joseph Foster (2014)

MEMORANDUM OF DECISION

I. Procedural History

This dissolution of marriage matter comes before the court for a contested trial, which was held on February 19, 2014.¹  Both parties were present at trial, and both were represented by counsel.   On February 24, 2014, counsel appeared before the court to report back on issues related to each party's pension.²

II. Factual Findings

Based upon a careful consideration of all of the evidence, arguments of counsel, proposed orders, and a review of the record, having afforded appropriate weight and credibility to the witnesses and the evidence, the court finds the following facts by a preponderance of the evidence:

1. The parties were married on August 28, 1982 in Pawcatuck, Connecticut.

2. The parties resided in Connecticut at least one year prior to the filing of the dissolution action, and all statutory stays have expired.

3. No children have been born of the marriage.

4. Neither party is receiving any financial assistance from any state or municipal agency.

5. The marriage has broken down irretrievably with no hope of reconciliation.   Both parties were responsible for the cause of the break-down of the marriage.   The plaintiff was subjected to mental and verbal abuse from the defendant.   The defendant was subjected to insulting comments and unsupportive behavior by the plaintiff.   At times, the defendant drank alcohol to excess.³  For at least the past ten years, the parties have lived as roommates—rather than spouses—and have treated each other unkindly.

6. During the course of the marriage, the defendant paid the bulk of the marital expenses.   The plaintiff's monetary contributions to the marital expenses were limited.   The defendant worked often and was under financial pressure to pay the expenses at the marital home.   The plaintiff testified that the defendant was a good provider, and assisted (up to a point) with her son, Dan, to Dan's economic benefit.   The testimony of the parties was at odds as to the amount of money the plaintiff contributed to the marital expenses.   The defendant testified that although the plaintiff worked throughout the marriage, she did not contribute to the expenses of the parties, beyond six car payments, and that she kept the money from her employment.   The plaintiff testified that she paid for her own medical expenses, credit cards, laundry and cleaning expenses, cat food, and items to fix up the home;  the court finds credible this testimony.   The plaintiff testified that although the defendant paid for everything, she paid him $500.00 per month in the last four years, increased from a prior amount of $400.00 per month.   The plaintiff further testified that she began to require the defendant to sign a calendar when she paid him as proof that she had paid him, and that the practice stopped after some time.   No calendar or other evidence was offered at trial regarding the payments, beyond the testimony of the plaintiff.   The defendant testified that the plaintiff kept whatever money she made, and that for 30 years, he paid all of the expenses of the marital home.   The defendant testified that he paid the following monthly expenses at the marital home for 30 years:  $775 for rent, $800 for food, $250–$275 for electricity, plus car costs, cable and all other household expenses.

The court finds that during the course of the marriage, the plaintiff's financial contributions were limited.   The plaintiff generally kept the money she made from her employment, paying for those expenses to which she testified.   The defendant kept the money he made from his employment, and paid the bulk of the marital expenses.   The court does not credit the defendant's testimony that the plaintiff only paid for six car payments throughout the course of the marriage.   The court does not credit the testimony of the plaintiff that she paid the defendant $500.00 per month over the last four years, and $400.00 per month in the previous years.

7. The parties have always rented the marital home, and have never owned real estate together.   The parties have never had a joint bank account.

8. The plaintiff owns a Ford Focus car valued at $10,000–$11,000, with a loan amount in excess of $5,000.00.   The court finds the equity in the car is $5,500.00.   The defendant owns a Chevrolet truck, which the court finds is valued at $4,000.00.   There is no loan on the truck.

9. The defendant owns a lobster boat, a motor and lobster fishing equipment.   The defendant testified that the lobster boat was currently worth $8,000–$10,000, and that he purchased it in 2002 and paid approximately $45,000 for it.   The defendant also testified that he bought a new motor for the boat in 2012 at a price of $14,000, and that he owns 150 lobster pots, valued at $5.00–$10.00 each.   He also testified that he spent $1,600 in 2010 and $2,000 in 2012, for lobster pots.   He testified that he stopped lobster fishing in September 2013 when the IRS took his license.   The court finds the total value of the boat, motor and equipment to be $20,000.00.   The court finds that the boat was acquired and maintained solely by the defendant.

10. The plaintiff is 66 years old, does not have a high school diploma, and has limited job skills.   She began collecting a pension from American Velvet, and social security benefits, at the age of 62.   Her total net monthly income from all sources is $1,759.99.   She suffers health issues for which she has received treatment, including arthritis, depression, high blood pressure and diabetes.   The plaintiff worked throughout the marriage in various capacities, and is currently employed at Walmart as a fitting room attendant.   According to the plaintiff's financial affidavit, her net weekly income is $409.30;  which, when multiplied by a factor of 4.3 (average weeks in a month), yields a monthly net income of $1,759.99.   The court credits the plaintiff's testimony that when she was not working, she cleaned, cooked, washed clothes, decorated the house and kept it in a nice condition, and that the defendant also cooked.

11. The defendant is 61 years old, does not have a high school diploma, and has limited job skills.   His total net monthly income from all sources, including present earning capacity, is $3,521.17.   Throughout the marriage, the defendant worked full-time, including delivering bread and other goods for Hostess Brands and its predecessor company.   He retired on September 30, 2012.   The defendant receives a pension in the monthly amount of $2,790.00, minus state income tax of $2,000.00 per year, for a total net monthly income from his pension of $2,623.33.   He also owned a lobster business for which he worked additional hours.⁴  Since 1999, the income from the defendant's lobster business has decreased for various reasons.   When he was working on the bread truck, the defendant worked full-time from 2:30 in the morning until 1:00 in the afternoon, at which time he would nap before working on the lobster boat.   During the course of the marriage, the defendant always worked at least one full-time job, and sometimes two.   The defendant is not currently employed.   Based upon the evidence, the court finds that he is presently capable of working thirty hours per week at the minimum wage rate of $8.70 per hour, for a net monthly earning capacity from employment of $897.84.   He suffers health issues for which he has received treatment, including diabetes and arthritis.

12. Since the marriage, the parties have filed joint income tax returns.   The plaintiff testified that the refunds from joint tax returns were always deposited into the defendant's checking account.   The defendant testified that the money was used to pay household expenses.   The parties were audited by the Internal Revenue Service (IRS) for the tax years 2010 and 2011;  the parties were not audited for the tax year 2012.   Based on the audits, tax liabilities (including interest and penalties) were assessed against the parties by the IRS. The defendant used his credit cards to pay the IRS liabilities.⁵  The court finds that the defendant paid $9,656.40 on his Choice credit card to the IRS for tax liability and penalties for tax years 2010 and 2011.

The court will set forth below additional factual findings relevant to its analysis.

III. Discussion

“[T]he purpose of alimony [is] the obligation of support that spouses assume toward each other by virtue of the marriage ․ Alimony is always represented by money and is damages to compensate for loss of marital support and maintenance ․ In other words, alimony represents the court's finding, measured in dollars, of the financial needs of the receiving spouse at the time of the dissolution.”  (Internal quotations omitted.)  Weingand v. Weingand, 129 Conn.App. 526, 535–36, 21 A.3d 489 (2011), citing Lehan v. Lehan, 118 Conn.App. 685, 696, 985 A.2d 378 (2010).   See also Brown v. Brown, 148 Conn.App. 13, 20–22 (2014) (reiterating broad discretion of trial court in determining appropriateness of alimony).   In determining whether an award of alimony is appropriate, the court must consider the following factors pursuant to C.G.S. § 46b–82:  the length of the marriage, the cause of the dissolution, 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 § 46b–81.⁶

The parties were married for approximately thirty-one years before the divorce was filed.   Based upon the evidence, the court concludes that the parties were relatively equally at fault for the breakdown of the marriage.   Although the plaintiff was employed throughout the marriage, the defendant paid the bulk of the household bills, with limited financial assistance from the plaintiff.   The defendant was, at times, verbally and mentally abusive towards the plaintiff;  the plaintiff was, at times, mean-spirited towards the defendant.   The financial strain placed upon the defendant as a result of the plaintiff's limited financial contribution to the parties' expenses significantly contributed to the breakdown of the marriage, as did the mental and verbal abuse by the defendant, the behavior of the plaintiff toward the defendant, and the overall negative relationship between the parties.   For at least the last ten years, the parties lived as roommates, and caused financial and emotional strain to each other.   Except for a brief period of time within which the plaintiff's son from a prior marriage lived with the parties, the marriage did not include raising children together, as there were no children of the marriage.

The ages of the parties are relatively comparable;  the plaintiff is 66 years old and the defendant will turn 62 years old shortly.   Both parties experience comparable health issues.   Both parties left high school before attaining their diplomas.   Both parties have limited vocational skills.   The plaintiff has worked at various jobs, including at a factory, at a donut shop, and at her current job as a fitting room attendant.   The defendant worked for most of his life as a bread truck driver/delivery person.   He was also a licensed lobster fisherman.   The court finds that, based on the plaintiff's financial affidavit and her present employment, the plaintiff has an earning capacity of a net monthly income of $771.94.   Pursuant to the plaintiff's financial affidavit, her net weekly income from all sources is $409.30;  which, when multiplied by a factor of 4.3 (average weeks per month), yields a net monthly income of $1,759.99.   The court finds that the defendant has an earning capacity, based on his employment history, of a net monthly income of $897.84, calculating employment of thirty hours per week at a rate of $8.70 per hour.   The defendant's net monthly income from all sources, including present earning capacity, is $3,521.17.

The court has considered each of the statutory factors and finds that, in order to compensate the plaintiff for the loss of marital support and maintenance, it is fair and reasonable that the defendant pay to the plaintiff the amount of $880.00 per month in alimony.   Alimony shall terminate upon the death of either party, the remarriage of the plaintiff, or the plaintiff's cohabitation as that term is defined by statute and law.   In ordering no specific termination date, or duration for the term of alimony, the court recognizes that its order is potentially one of life-time alimony.   In addition to considering all of the 46b–82 statutory factors, the basis for the court's decision on alimony includes the fact that the parties were married for thirty-one years, that the plaintiff is 66 years old, with some health concerns, that the nature of the marriage was such that the defendant paid the bulk of the marital expenses, and that the defendant's income throughout the marriage substantially out-weighed the plaintiff's income.

In determining an appropriate property distribution pursuant to C.G.S. § 46b–81, the court must consider the following factors:  the length of the marriage, 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, as well as the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

The court awards the plaintiff the Ford Focus, and orders that she shall be responsible to pay the car loan, and all expenses associated with the Ford Focus, and hold the defendant harmless.   The court awards the defendant the Chevrolet truck.   The defendant shall be responsible for any encumbrances thereon, if such exist, and hold the plaintiff harmless.   The court awards the defendant the lobster boat, motor, lobster pots and all other lobster fishing equipment.   The defendant shall be responsible for all costs associated with the Chevrolet truck, and hold the plaintiff harmless.

In determining the property award, the court has considered the statutory factors from § 46b–81 as mirrored in § 46b–82 and described above.   Further, the court has considered the additional § 46b–81 statutory factors, and finds that the plaintiff's position for future acquisitions and income is less than the defendant's.   The court finds that the plaintiff was solely responsible for the acquisition, preservation and appreciation of the Ford Focus.   The court finds that the defendant was solely responsible for the acquisition, preservation and appreciation of the Chevrolet truck, and lobster boat, motor and equipment.

All other remaining personal property shall be divided by the parties by agreement.   If the parties cannot agree, the property is ordered to be sold at fair market value and the proceeds to be divided equally between the parties.

The plaintiff seeks an award of attorneys fees in the amount of $3,000.00 in conjunction with the trial.   Pursuant to C.G.S. § 46b–62, the court may order either spouse to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in § 46b–82.   The court has considered the respective financial abilities of the parties, as well as the § 46b–82 criteria.   The court has also considered the reasonableness of the amount requested.   The court finds that based upon the financial abilities of the parties, and the statutory criteria, it is reasonable and fair that the defendant pay the plaintiff's attorneys fees in the amount of $3,000.00.   The parties appeared in court with counsel for the better part of the day for trial, and counsel were required to report back to the court on a second day.   The court finds that the amount of $3,000.00 is reasonable for the preparation and trial of the case based upon the amount of time reasonably required to prepare and try the case.⁷  The court orders that the defendant pay to plaintiff's counsel the amount of $3,000.00 as attorneys fees.

IV. Conclusion

Having considered all of the evidence, and the applicable law, specifically Connecticut General Statutes §§ 46b–62, 46b–81 and 46b–82, the court orders the following: ⁸

1. Based on the cross complaint, the dissolution of marriage enters;  the parties are declared single and unmarried.

2. The defendant/husband shall pay to the plaintiff/wife the amount of $880.00 per month as alimony, commencing on April 10, 2014, and continuing on the first of the month for every month thereafter.   Alimony shall terminate upon the death of either party, the remarriage of the plaintiff, or the plaintiff's cohabitation as that term is defined by CGS § 46b–86(b) and case law.

3. Each party shall retain exclusive ownership and interest in his/her respective pension, free and clear of any claim by the other.

4. The defendant/husband shall have exclusive ownership of the lobster boat, motor, lobster pots and all other lobster and fishing equipment.   The defendant shall be solely responsible for all costs associated therewith, and shall hold the plaintiff harmless.

5. The plaintiff/wife shall have exclusive ownership of the Ford Focus car, and shall be solely responsible for the loan, and hold the defendant harmless.   The defendant/husband shall have exclusive ownership of the Chevrolet truck, and shall be solely responsible for all costs associated therewith, and hold the plaintiff harmless.   The parties shall execute any documents or title necessary to transfer ownership within thirty days.

6. The parties shall be solely responsible for any debts listed on their financial affidavits, with the exception of any federal or state tax liability, which shall be divided equally.

7. The parties shall file joint federal and state tax returns for the year 2013.   The parties shall share any 2013 refund equally.   Any tax liability (including interest and penalties) for the year 2013 shall be divided equally.   Any further tax liability (including interest and penalties) for the years 2010, 2011 and 2012 shall be divided equally.

8. The parties shall divide their personal property by agreement.   To the extent that the parties are unable to agree upon the division of personal property, such property shall be sold at a reasonable cost and the proceeds divided equally between the parties.

9. The defendant/husband shall pay to plaintiff's counsel the amount of $3,000.00 in attorneys fees, which amount the court finds reasonable for preparation and trial of this matter.   Said amount shall be paid in monthly payments of $250.00, commencing on May 1, 2014, and continuing on the first of each month thereafter until the total amount is paid.

10. Each party shall be responsible for the cost of his/her own life insurance, health insurance, and all other insurances.

BY THE COURT,

Goodrow, J.

FOOTNOTES

FN1. Based upon considerations of her religion, the plaintiff sought a legal separation, rather than dissolution of the marriage.   The defendant filed a cross complaint, seeking a divorce..  FN1. Based upon considerations of her religion, the plaintiff sought a legal separation, rather than dissolution of the marriage.   The defendant filed a cross complaint, seeking a divorce.

FN2. Counsel reported that the pension of their respective client was subject to a Qualified Domestic Relations Order (QDRO) as each is a defined benefit plan..  FN2. Counsel reported that the pension of their respective client was subject to a Qualified Domestic Relations Order (QDRO) as each is a defined benefit plan.

FN3. The parties agree that at some point during the marriage, the defendant's alcohol consumption resulted in an arrest for the charge of driving while intoxicated.   The defendant testified that he doesn't presently have a drinking problem..  FN3. The parties agree that at some point during the marriage, the defendant's alcohol consumption resulted in an arrest for the charge of driving while intoxicated.   The defendant testified that he doesn't presently have a drinking problem.

FN4. The plaintiff testified that the defendant's lobster business was a cash business, and that he did not share the proceeds with her, and that he kept cash from the lobster business under the dresser in his bedroom.   The defendant testified that all of the proceeds from the lobster business either went back into the business, or were used to pay household bills.   There is no evidence that either party lived an extravagant lifestyle..  FN4. The plaintiff testified that the defendant's lobster business was a cash business, and that he did not share the proceeds with her, and that he kept cash from the lobster business under the dresser in his bedroom.   The defendant testified that all of the proceeds from the lobster business either went back into the business, or were used to pay household bills.   There is no evidence that either party lived an extravagant lifestyle.

FN5. The parties received at the end of 2013 a check in the amount of $8,943.26 from the IRS. A copy of the check was admitted as Defendant's Exhibit C. The date of the check is November 1, 2013 and contains a notation from the IRS which appears to indicate that the check represents a refund (with interest) for the tax year 2012.   Defendant's Exhibit D is a copy of a notice of deficiency dated December 5, 2013 from the IRS to the parties indicating that the parties owe additional monies to the IRS for tax years ending 2010 and 2011, totaling over $9,000.   The court previously ordered the plaintiff to execute the $8,943.26 check and deliver it to the defendant, for purposes of paying down the Choice credit card was used to pay the tax liabilities..  FN5. The parties received at the end of 2013 a check in the amount of $8,943.26 from the IRS. A copy of the check was admitted as Defendant's Exhibit C. The date of the check is November 1, 2013 and contains a notation from the IRS which appears to indicate that the check represents a refund (with interest) for the tax year 2012.   Defendant's Exhibit D is a copy of a notice of deficiency dated December 5, 2013 from the IRS to the parties indicating that the parties owe additional monies to the IRS for tax years ending 2010 and 2011, totaling over $9,000.   The court previously ordered the plaintiff to execute the $8,943.26 check and deliver it to the defendant, for purposes of paying down the Choice credit card was used to pay the tax liabilities.

FN6. In a case of the parent to whom the custody of minor children have been awarded, § 46b–82 also requires the court to consider the desirability of such parent's securing employment..  FN6. In a case of the parent to whom the custody of minor children have been awarded, § 46b–82 also requires the court to consider the desirability of such parent's securing employment.

FN7. The court finds that the time expended by plaintiff's counsel for preparation and trial of the matter was at least ten hours;  further, the court takes judicial notice of the fact that the rate of $300.00 per hour is fair and reasonable for such preparation and trial.   The defendant testified that he paid his attorney $10,000.00 in attorneys fees;  the plaintiff testified that the amount paid by the defendant to his attorney was $13,500.00..  FN7. The court finds that the time expended by plaintiff's counsel for preparation and trial of the matter was at least ten hours;  further, the court takes judicial notice of the fact that the rate of $300.00 per hour is fair and reasonable for such preparation and trial.   The defendant testified that he paid his attorney $10,000.00 in attorneys fees;  the plaintiff testified that the amount paid by the defendant to his attorney was $13,500.00.

FN8. The plaintiff testified that she is not seeking the restoration of her prior last name of Soares..  FN8. The plaintiff testified that she is not seeking the restoration of her prior last name of Soares.

Goodrow, Karen, J.