Christopher Kirby v. Erin Kirby

MEMORANDUM OF DECISION

The plaintiff, Christopher Kirby has brought his action for dissolution against the defendant, his wife, Erin Kirby.   The trial of this case was held on January 12, 2009, at which both sides had legal counsel and the defendant appeared but the plaintiff did not although he had full and complete notice of the trial date.   The matter went forward on the defendant's cross-complaint.

This court has considered all of the relevant statutory criteria, including the length of the marriage, fault, the age, station, occupation of the parties, assets, amount and sources of income, skills, employability, debt, non-monetary contributions, acquisition and preservation of the estate, needs of each of the parties and the opportunity of each for future acquisition of capital assets and income and all other criteria set forth in C.G.S. §§ 46b-62, 46b-81, 46b-82, 46b-84, 46b-215b, 46b-56c and the Child Support Guidelines.   The court enters the following findings and orders:

The court finds that the defendant is credible.   The parties were married on October 22, 2005, and one or both has resided in Connecticut for twelve continuous months prior to the inception of this action.   There is one minor child born of the marriage and no state or local aid was received during the marriage.   The court finds that the marriage is broken irretrievably without hope of reconciliation.   The court finds that the defendant contributed significant assets to the marriage.   The court finds that she has an earning capacity of $270 a week gross and the plaintiff has an earning capacity of $3,731 a week gross.   The plaintiff is currently under orders of the court to contribute $950 a week to the defendant with $200 designated as alimony and $750 designated as child support.   The court finds that under the Connecticut child support guidelines the amount of child support paid by the plaintiff would be $356 a week.

The court finds that the plaintiff, who moved out of the family residence on the parties' third anniversary to reside with a girlfriend (with whom he had a child in August), is completely at fault for the breakdown of the marriage and also for the financial debacle that the defendant is now confronting.

ORDERS

Parenting

1. The Mother shall have sole custody of the minor child, Dorothy Rose Kirby.

2. Before the Father can exercise any parenting time with the minor child, he must complete the Connecticut Parenting Education class and then file a Motion with the Court seeking a modification of parenting time.

3. In addition, if the Father chooses to exercise parenting time in the future, before his Motion to Modify is heard, the parties shall consult with a child therapist recommended by the child's pediatrician to determine the best way to reintroduce the Father to the child.

4. The Mother shall make all decisions related to the minor child.

Financial

Support

1. The Husband shall continue to pay to the Wife child support in the amount of $950.00 ¹ per week until the minor child reaches the age of eighteen (18) or graduates from high school, whichever is later, but in no event later than the child's nineteenth (19th) birthday.   Said payment shall continue to be subject to an immediate wage execution.   The court finds that this upward deviation, which was first set by the court, Dyer, J., pendent elite, is warranted pursuant to the criteria of Connecticut Reg. §§ 46b-215a-3(1)(B) in that the plaintiff has a greater earning capacity than the defendant;  § 46b-215a-3(6)(B) in that there is extraordinary disparity in parental income and an upward deviation is necessary for the defendant in order to foster her relationship with the child under the financial straits caused by the plaintiff and would enable the defendant to meet the basic needs of the child;  § 46b-215a-3(6)(C) in that it is in the best interests of the child to receive the deviated child support because of the financial straits caused by the plaintiff will otherwise impede her growth, education and well being without the upward deviation;  and § 46b-215a-3(6)(D) in that it would be inequitable because of the financial straits caused by the plaintiff to leave the child with only the guidelines child support amount.

2. Within fifteen (15) days the Husband shall bring current all of his pendente lite support obligations.

3. The Husband shall maintain health insurance for the minor child until she reaches the age of twenty-three (23) or is no longer eligible for such care.   The unreimbursed medical expenses for the minor child shall be split 50-50 by the parties.

4. The court shall retain jurisdiction over the payment for the post-secondary education in college or for any further learning and training beyond high school for the child pursuant to CGS § 46b-56c.

Liabilities

1. Within fifteen (15) days of being provided documentation of the remaining balance due on the joint credit card and the joint loan on the vehicle the Wife drives, the Husband shall pay to the Wife his one-half share of each debt.

2. Within fifteen (15) days of Judgment, the Husband shall pay to the Wife the sum of $4,243.99, which represents his share of the following expenses:

a. the Viacord payments made by the Wife from October 2008 through April 2009, and the yearly payment made by the Wife in May 2009 for the continued storing of the minor child's umbilical cord ($717.50-Chris' share);

b. the joint credit card payments made by the Wife from October 2008 through March 2009 ($559.00-Chris' share);  and

c. the joint car loan payments made by the Wife from November 2008 through March 2009 ($1800.60-Chris' share).

d. the payments made by the Wife from October 2008-February 2009 for the Husband's car insurance ($258.50-his premium amount).

e. the payments made by the Wife from October 2008 through August 2009 for the parties' joint account with Standard Security ($148.39-Chris' share).

f. the payments made by the Wife from December 2008 through October 2009 for the parties' joint account with the Madison home landscaper ($760.00-Chris' share).

3. Within fifteen (15) days of Judgment, the Husband shall pay to the Wife the sum of $24,838.93 which represents:

a. the sum paid by the parties from the home equity line of credit in the Wife's name only for the motor vehicle the Husband operates ($14,410.78).

b. one-half the sum the Husband removed from the parties' joint bank account to use as a down payment on the apartment he moved into with his girlfriend after separating from the Wife ($250.00).

c. the sum paid by the Wife from the sale of her condominium in New York to pay off the Husband's individual credit card in the United Kingdom ($10,000.00).

d. the early termination fee incurred by the Wife for canceling the Husband's cell phone from her plan at Husband's direction ($178.15).

4. Except as outlined herein, each party shall be solely responsible for all other debts and liabilities in his/her name and he/she shall indemnify and hold the other party harmless from the same.

5. Within fifteen (15) days the Husband shall pay to the Wife's attorneys, the sum of $1,500.00 as previously ordered by this court on November 3, 2009.

Property

Each party shall retain all property listed in his/her respective name, free and clear from any claim by the other party.   However, in the event the Husband fails to make any of the payments outlined under the Liabilities section above, the Husband shall immediately complete any and all paperwork necessary to transfer his retirement assets in the United Kingdom to the Wife. If the Wife can immediately liquidate the United Kingdom retirement asset and pay the liabilities outlined above in full, then the transfer of the United Kingdom retirement asset shall be considered full payment of the liability obligations.   If the sums liquidated are insufficient to cover the payment of the liabilities outlined above, the Husband shall pay the shortfall to the Wife plus interest at the rate of ten percent (10%) per year on said shortfall until such time as the balance is paid in full.   If, however, the Wife cannot within thirty (30) days liquidate the United Kingdom retirement asset then the Husband shall continue to be responsible for paying to the Wife the sums listed under the liabilities section above and the transfer of the United Kingdom retirement asset shall be considered payment for interest accrued on the liabilities and a penalty to the Husband for not timely fulfilling his obligations.

Alimony

The plaintiff shall be obligated to pay the defendant the sum of $1 per year as alimony until all of the liabilities assigned to him by the terms of this judgment have been fully performed.   In the event of his breach of his obligations in this regard, the defendant may seek to modify this alimony award to secure an award, net of taxes that may be payable with respect to such an award in an amount and for a duration sufficient to fully recompense her for all costs, expense, and damages, including attorneys fees and other court-related costs they incurred as a result of the plaintiff's breach of said obligation.

Insurance

The Husband shall obtain a life insurance policy in the face amount of $500,000.00.   The beneficiary of this policy shall be a trust for the minor child.   Upon the minor child of the parties reaching the age of twenty-three (23), or completing a college education or further learning or training beyond high school up to age twenty-three (23), whichever is the first to occur, the Husband may change the beneficiary of the life insurance policy.   The Husband shall not pledge, assign, or otherwise hypothecate said insurance.   Proof that said life insurance is in place with the proper beneficiaries shall be provided within sixty (60) days of the date of dissolution and on each anniversary of the date of dissolution until such time as the obligation under this section terminates.

2. Each party shall be responsible for his/her own health insurance.

Tax Exemptions

1. The Wife shall claim the minor child as an exemption for tax purposes.

Miscellaneous

1. The Husband shall immediately provide to the Wife a current address and cell phone number where he can be reached.

2. Within five (5) days of obtaining employment, the Husband must notify the Wife of the same and provide her with a copy of his employment contract or other documents, which outline his compensation structure, including but not limited to benefits, salary and bonuses.

3. The Wife's maiden name of Fox shall be restored.

SO ORDERED.

BY THE COURT,

J. Fischer, J.

FOOTNOTES

FN1. The original support order was entered by Judge Dyer following a contested hearing on Nov. 19, 2008, at which point the court entered a support order of $950 and at the Plaintiff's request, agreed to treat $200 of it as alimony for a small tax break..  FN1. The original support order was entered by Judge Dyer following a contested hearing on Nov. 19, 2008, at which point the court entered a support order of $950 and at the Plaintiff's request, agreed to treat $200 of it as alimony for a small tax break.

Fischer, Jack W., J.