Opinion
No. FA03-040 37 97-S
December 1, 2005
MEMORANDUM OF DECISION
This matter was tried before the Regional Family Trial Docket, on a referral from the Fairfield Judicial District, on September 6th-8th, 19th-23rd and October 11th and 14th, 2005. The Plaintiff and Defendant testified and numerous exhibits were introduced. The court has considered all of the credible evidence presented to it and carefully considered the respective criteria for orders of custody, visitation and access, child support, health insurance, payment of children's medical expenses, 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 October 6, 1995, in Stamford, Connecticut. The court finds that it has jurisdiction over the marriage. One of the parties has lived in the State of Connecticut for more than one year prior to bringing this action. The following minor children have been born to the parties since the date of the marriage:
Joshua, date of birth, July 11, 1996; and
Larissa, date of birth, June 18, 2000
No other minor children have been born to the Wife since the date of the marriage. The parties are not receiving state assistance. The court finds that the marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.
The Wife is 41 years old and is receiving a disability pension from the City of Stamford for injuries received on the job as a police officer. Ms. Salazar was previously married and has an older daughter, Nichole, from that marriage. For that daughter, she receives child support in the amount of $162 per week.
Ms. Salazar is a graduate of Sacred Heart University with a BA in Criminal Justice. She was trained as a police officer at the Connecticut Police Academy and received additional training from the City of Stamford. The plaintiff became a Stamford police officer in May 1986 and retired on disability in October 2003. Ms. Salazar receives a disability pension in the amount of $47,160.00 per year. The disability payments are tax-free. She was initially injured on the job in 1991 and again in January 1997 in an automobile accident on the way home from work. She testified she also suffers from post-traumatic stress disorder (PTSD) and an aggravation of pre-existing neck and back injuries as a result of an August 22, 2002 domestic violence incident involving her husband. The wife testified she suffers from panic attacks, flash backs, sleep difficulties, and fears new situations and meeting new people. Ms. Salazar testified that the PTSD prevents her from gainful employment because she never knows when she would have a sleepless night and be unable to function in the morning. The Plaintiff sued her husband in a separate civil lawsuit for this attack.
The defendant husband is 51 years old and was born in El Salvador. He relocated to this country in 1975 when he was 19 years old. He attended high school in San Salvador, received a BA in psychology from IONA College, New Rochelle, NY, and obtained an MA in Latin American Studies from New York University in 1995. He is a certified instructor in cultural diversity and Spanish at the Connecticut Police Academy.
Mr. Salazar has been a Stamford Police Officer since 1984 and had been employed as such for 11-12 years prior to the couple's marriage. His current assignment is as a School Resource Officer. He earns $61,984 yearly gross income. Prior to the separation, the husband did extra-duty work and earned an additional $3,000-$5000 per year. He also collects rent from premarital property owned at 14-16 Williams Street, Stamford, CT.
The defendant owned a lot in New Hampshire prior to the marriage. The fair market value of the lot is $6,200 and was purchased for $5,000.
Mr. Salazar has a heart and hypertension claim currently pending against the City of Stamford.
The wife owned a condominium located at 183 Knapps Highway, Fairfield, CT, prior to the marriage. The parties stipulated that the value of the condominium, as of the date of the marriage, is $140,000 (Exhibit 71) and the present value is $292,000 (Exhibit 72). The marital appreciation in the real estate is $152,000.
The plaintiff also brought to the marriage a 1995 Ford Bronco which was sold in 1998 for $3,500 and a 1987 Ford Mustang, with a current NADA value of approximately $10,000. She also had two ADVEST accounts, one as custodian for her daughter Nichole, and one in her name. The wife testified that her husband came to the marriage owing $10,000 of credit card debt, and a 1994 Toyota with a $25,000 loan that the couple paid off during the marriage.
In 1999, during refinancing of the Knapps Highway and Williams Street properties, the couple put both properties in joint ownership. Prior to this refinancing, the properties were in the premarital sole names.
Mr. Salazar purchased the property located at 14-16 Williams Street, Stamford, CT, jointly with his parents in 1978 prior to the marriage. Mr. Salazar's parents transferred the property to their son in September 1994, prior to the marriage, to avoid probate problems and because their son could take care of the home for them. The defendant testified he paid his parents $45,000 in September 1994 as a result of the transfer of the property to his name. The defendant testified he never intended to charge his parents rent or to sell the property while they were alive. Mr. Salazar's mother, Martha Rudas, has lived in the property rent-free since the transfer to the husband. Prior to his father's death, the senior Mr. Salazar collected the rents and paid the mortgage. In 1999, the defendant took over the collection of rent and making the mortgage and utility payments.
The property was put in joint names in 1999 when the husband discovered he needed his wife's signature to refinance the property. The parties' testimony was consistent that the plaintiff wanted title to include her name if she was going to be liable on the mortgage.
Ms. Salazar argued to the court that the value of Martha Rudas' apartment was $1,000.00 per month and should be included in her husband's income. The parties stipulated that the value of the Williams Street property at the date of marriage was $255,000 and the present value is $657,500. The equity acquired during the marriage is $402,500.
The Williams Street property has a number of housing code violations reported to the City of Stamford, Health Department by the wife. The violations require the replacement of eight doors with eight-1-hour fire-rated doors; installation of 4 smoke detectors; removal or painting of wood paneling with fire resistant paint; sheet rocking the basement utility area or hardwiring a smoke detector in the basement that notifies all units of a fire/smoke; replacement of one-bulb light fixtures with 2-bulb fixtures; installing covers/switch plates on exposed junction boxes in the basement; and either the installation of an exterior stairway for egress from the third-floor apartment or ceasing use of the attic space as a separate apartment (Exhibit 31). The Deputy Fire Marshall, Mr. Kenneth Byxbee testified at trial as to the code violations and the cost of remediation. The replacement of the doors would cost roughly $2,500.00; the basement utility area repair would cost $1,200-$2,000.00, depending on the type of system used; the four battery-operated smoke detectors would cost $50.00; and the purchase of three 2-bulb fixtures would cost $45.00. Mr. Byxbee did not know the cost of the fire retardant paint. Mr. Salazar testified that he contacted one electrician and believed the hard wiring would cost $10,000+.
Ms. Salazar sought to prevent the children from spending the night at the home on Williams Street, Stamford, because she deemed it unsafe due to the numerous housing code violations. In addition to discussing the housing code violations with City Officials numerous times, Ms. Salazar brought the housing code violations to the attention of the Stamford Police Department Internal Affairs on two occasions. Despite losing tenants and the danger to the children, Mr. Salazar failed to make all the required repairs to the Williams Street property. He testified that he had insufficient funds to make the repairs. However, he also admitted to spending $7,000 for a private investigator and holding on to a $2,000 necklace he purchased but did not give to his wife.
Despite the numerous housing code violations, the wife argued that her husband's income should be increased by the rental value of the property in the amount of $3,392.50, as computed by her appraiser (Exhibit 43). Exhibit 43 does not deduct the monthly mortgage, taxes and insurance payment of $1750.00 when determining monthly operating income. The plaintiff acknowledged that joint marital funds were not used to maintain or substantially improve the Williams Street property other than the occasional Home Depot charge. Finally the 2001 tax return (Exhibit KKK, Schedule E), reports a loss of $2,439.00 without deducting depreciation. The court notes that the Knapps Highway condominium had a $7,567.00 profit in 2001 before deducting depreciation. In 2004 (Exhibit MM), the Knapps Highway condominium had a profit of $9,094.00 before deducting depreciation.
The husband has not filed federal or state income tax returns while this case has been pending. His testimony regarding the amount of rent he collects from the Williams Street property was confusing at best. Mr. Salazar admitted some of the rent is paid in cash and that his mother sometimes collects the rent and keeps an unspecified amount of cash for her own use. The defendant acknowledged that not all the rental income is deposited into the bank due to the cash payment of utilities for a number of years and his mother's retention of some of the funds. At the time of trial, most of the tenants had left the property due to the housing code violations. An analysis of cash deposits to the defendant's bank account was inconclusive because the husband claimed some of the cash deposits were the result of cash loans, and the amounts of cash deposits varied from month to month (Exhibit 47).
In January 2001, the husband and wife settled the lawsuit arising out of the 1997 automobile accident for a net payment of $204,000. Included in that amount was the husband's loss of consortium claim in an unspecified amount. When the couple separated in August 2002, approximately $112,477 (Exhibit NN) was left. Mr. Salazar testified that $40,000.00 was the amount allocated for his loss of consortium claim but this contention was disputed by the wife.
As of the date of the trial in this matter, all the personal injury settlement money had been exhausted. Ms. Salazar spent the money on legal fees and household expenses during the pendente lite period. The pendente life orders did not enter until January 2004 and during the period from August 2002-January 2004, Ms. Salazar estimated her husband paid her approximately $10,000 for the support of the family home.
The husband and wife dispute the present value of the family home. The wife's expert appraiser places a fair market value on the family home of $850,000.00 (Exhibit 68) and the husband's expert places a fair market value of $948,000.00 (Exhibit V). The primary differences between the appraisals are the adjustments for view (the water tower in the front yard) and location (adjacent to the Merritt Parkway). The court finds that an adjustment for view and location is appropriate. However, the wife's adjustment is too low and the husband's adjustment is too high. The court finds that the fair market value of the family home is $900,000.00. The down payment for the home consisted of funds from the refinance of the Knapps Highway property and funds from Nichole's and Joshua's custodial accounts. The parties agreed that the children's accounts would be replenished with an amount equivalent to the appreciation on the Burr Street property. Exhibit 109 indicates that $32,962.11, or 36% of the down payment, was contributed from Nichole's custodial account; $27,947.53, or 30% of the down payment, was contributed from Joshua's custodial account. The plaintiff asserts that Nichole is currently due $101,700.00 and Joshua is due $84,750.00 of the current equity in the Burr Street property. The children's equity is not currently protected by an ownership interest in the real estate. The marital equity in the Burr Street property, after payment of the mortgage and the children's interests, is $900,000-$101,700-$84,750.00-$283,908=$429,642.
Conn. Gen. Statute Sec. 45a-558i Care and control of custodial property: d) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor, custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: "as a custodian for (name of minor) under the Connecticut Uniform Transfers to Minors Act."
In Sender v. Sender, 56 Conn.App. 492, 743 A.2d 1149 (2000), the Superior Court was found to have subject matter jurisdiction in case that involved custodial accounts and arose in the context of the dissolution of a marriage. The court is making orders to protect the minor children's investment in the Burr Street property.
FAULT
The couple separated in early August 2002. Mr. Salazar returned to the family home to care for the children while the wife worked. On August 21, 2002, the plaintiff told the defendant she was leaving for the weekend and he would be responsible for the children from Friday through Monday. The defendant said he had to work and couldn't help the plaintiff out and the plaintiff stated that her plans were "set in stone." Mr. Salazar returned to the home later that night under the influence of alcohol while the wife was asleep with the youngest child. He attempted to bind her hands with a bicycle inner tube and threatened to kill her. Damage was done to the newel post and spindles of the stairway to the second floor. Once the wife broke free, she ran to a friend's home and called the police. Mr. Salazar had already called the police and when they arrived both parties were arrested. In the court transcript the following day (Exhibit 3), Mr. Salazar took full responsibility for the incident. Ms. Salazar was treated in the emergency room for bruises, contusions of her head, neck, back, and hand. Ms. Salazar did not remain in the hospital overnight and did not go to a battered women's shelter. She has received some counseling since the attack but not on a regular basis. The charges against the wife were dismissed and the charges against the husband were nolled. The plaintiff's testimony regarding the incident of domestic violence is persuasive. The husband, by his own admission, was under the influence of three to six vodka and cranberry juice drinks. His testimony regarding the night in question contained gaps in time and inconsistencies with his prior statements and deposition testimony. The court has given weight to the statement Mr. Salazar made in court the following day (Exhibit 2, page 3) in which he took full responsibility for the incident and stated his wife was an innocent victim.
Ms. Salazar claims her husband was and still is an active alcoholic. The incident of domestic violence described above was fueled by alcohol. Mr. Salazar did receive treatment for alcoholism after the couple separated.
The plaintiff testified and introduced evidence that her husband was having an affair with one of her sisters. She introduced a videotape and photographs (Exhibit 86 and 98-108) of her sister's automobile parked in the defendant's parking spot at his apartment in November 2002. The video shows the defendant and plaintiff's sister kissing and getting into the car. Ms. Salazar testified that she observed her sister's car in the parking spot overnight and videotaped the couple leaving the following morning. Mr. Salazar initially denied his sister-in-law ever spent the night at his apartment. When confronted with his own interrogatories (Exhibit 108), he recalled his sister-in-law spending the night at his apartment but claimed he slept on the couch. He also testified that while his sister-in-law slept in his apartment he slept at his mother's home on Williams Street. When asked how he got to his mother's, because his car was parked by his apartment all night, Mr. Salazar claimed his elderly mother picked him up so he would not lose his parking space. The court did not find the husband's testimony persuasive.
Mr. Salazar admitted he gave his sister-in-law a $500.00 necklace as a Christmas gift in 2003 (Exhibit 29). Mr. Salazar was also loaned $14,500 for legal fees and litigation costs through his mother from his sister-in-law (Exhibits 27 and 28).
The court has taken into consideration the evidence above and coupled with Mr. Salazar's lapses of memory concludes that an inappropriate relationship existed between the defendant and his sister-in-law.
The court finds that the fault for the breakdown of the marriage lies with the husband for the reasons described above.
ORDERS
After considering all of the statutory criteria set forth in General Statutes § 46b-84 as to support of a minor child, § 46b-215a-1 et. seq., Regs. Conn. State Agencies, as to child support, § 46b-56 as to custody and care of minor children, § 46b-62 as to counsel fees, § 46b-66a, as to conveyance of real property, § 46b-81, as to assignment of property and transfer of title, § 46b-82, as to the award of alimony, § 46b-84, as to medical insurance for minor child, § 46b-56c as to Educational Support Orders together with applicable case law and the evidence presented here, the court hereby enters the following orders:
1. DISSOLUTION OF MARRIAGE
A decree dissolving the marriage on the grounds of irretrievable breakdown shall enter on December 1, 2005.
2. CUSTODY/ACCESS
The court finds that the agreement of the parties dated September 6, 2005 (#193), regarding a parenting plan, as amended by the stipulation dated September 7, 2005 (#195.00), and the court order dated September 7, 2005 (#196.00), is in the best interests of the minor children and they are incorporated herein by reference.
3. CHILD SUPPORT
The Defendant shall pay child support to the Plaintiff in accordance with the Child Support Guidelines in the amount of $245 per week.
4. UNREIMBURSED MEDICAL EXPENSES OF THE MINOR CHILDREN
The parties shall share unreimbursed medical expenses and day care expenses in the following proportions: 56% paid by the plaintiff and 44% paid by the defendant. Unreimbursed medical expenses shall include all unreimbursed medical, prescription, dental, orthodontic, optical care, psychological and social work counseling, speech therapy and physical therapy expenses.
5. SUMMER CAMP AND TUTORING EXPENSES
The parties shall each pay one-half of reasonable summer camp and tutoring expenses for the minor children.
6. MEDICAL INSURANCE
A. The Defendant shall maintain health insurance for the minor children as available through his employment and, if health insurance for the minor children is not available through his employment, he shall obtain substantially equivalent health insurance for the minor children so long as he has a child support or educational support obligation. Reimbursements of payments by the insurance company for the children's out-of-pocket health expenses shall be assigned to the plaintiff in accordance with statute.
B. The husband shall cooperate with the wife in obtaining COBRA insurance benefits if she is unable to secure coverage pursuant to her disability retirement benefits. The wife shall be solely liable for the cost of her medical insurance.
7. LIFE INSURANCE
The defendant father shall maintain $61,000 of life insurance for the benefit of the minor children ($30,500 for each child) with each child as beneficiary and the plaintiff mother as trustee, so long as he has a child support order or educational obligation. Within 30 days of the judgment, the defendant shall provide the plaintiff with written authorization to confirm coverage, beneficiary and payment of premiums.
8. EDUCATIONAL SUPPORT
The court retains jurisdiction to enter educational support orders for the minor children pursuant to C.G.S. § 46b-56c.
9. ALIMONY
The defendant shall pay alimony to the plaintiff in the amount of $250 per week for a period of 6 years from the date of judgment except that alimony shall terminate upon the Plaintiff's remarriage, cohabitation pursuant to the statute or the death of either party. Alimony shall be nonmodifiable as to term and modifiable as to amount.
10. PENSION
The Defendant's Pension with the Stamford Police Department shall be divided by Qualified Domestic Relations Order (QDRO) or Domestic Relations Order with the plaintiff being entitled to 25% of the marital coverture amount (75% to the Defendant; 25% to the Plaintiff of the pension benefit earned during the marriage).
11. AUTOMOBILES
The plaintiff shall be the sole owner of the 2002 Chevrolet Suburban and the 1987 Ford Mustang and the defendant shall sign over the titles of these automobiles to the plaintiff within 30 days of the judgment.
The defendant shall be the sole owner of the 1999 Chevrolet Malibu and the 1994 Toyota 4-Runner and the plaintiff shall sign over the titles of these automobiles to the defendant within 30 days of the date of the judgment.
12. FINANCIAL ACCOUNTS, TAX REFUNDS, INSURANCE PAYMENTS FOR DAMAGES, AND WORKERS' COMPENSATION CLAIM
A. The plaintiff shall be the sole owner of her Bank of America checking and savings accounts and of her Met Life whole life insurance policy.
The defendant shall be the sole owner of his Patriot Bank checking account.
B. The parties shall equally divide the joint refund checks from the 2001 Federal Income Taxes ($500) and 2001 State Income Taxes ($200). Within 30 days of the judgment, the defendant shall sign over both checks to the plaintiff who shall then send the plaintiff a check for one-half of the combined 2001 Federal and State Income Tax refunds within 7 days of receiving the signed checks.
C. The plaintiff shall be the sole owner of the $5,200 Aquarion Insurance Payment and the defendant shall sign over the payment check to the Plaintiff within 7 days of the judgment.
D. Upon settlement or reimbursement by the Condo Association and Insurance Company of approximately $18,745 for water damage and expenses to 183 Knapps Highway, Fairfield, Connecticut, paid for by the plaintiff, the defendant shall sign any required release(s) and sign over payment of the settlement check(s) to the plaintiff.
E. Any settlement or judgment from the defendant's Workers' Compensation Heart and Hypertension Claim filed during the marriage shall be the sole property of the defendant. Any settlement or judgment from the plaintiff's lawsuit filed against the City of Stamford during the marriage for her forced retirement shall be the sole property of the plaintiff.
13. PERSONAL PROPERTY AND FURNISHINGS
The defendant shall be entitled to possession of the items listed in Exhibit YYY except the freezer, dining room table and chairs, and the tractor. The husband shall be entitled to the Oriental rug located in the library of the home.
The defendant shall remove his personal possessions and furnishings from 1700 Burr Street, Fairfield, within 45 days of the date of judgment with a police officer present, after which time plaintiff can dispose of said possessions.
14. REAL ESTATE
A. 1700 Burr Street, Fairfield, CT: The defendant shall quitclaim all his right title and interest in the Burr Street property to the plaintiff within 30 days of the judgment. The plaintiff shall hold the defendant harmless from all liabilities associated with the property including, but not limited to, the mortgage, home equity loan, real estate taxes, utilities and maintenance. The plaintiff shall refinance the mortgage and remove the defendant's name from the mortgage within 90 days of the quitclaim of the property.
Due to the dissipation of Nichole's and Joshua's custodial accounts to make the down payment on the Burr Street property, Nichole and Joshua shall have the following mortgage interest in the property: Nicole Salazar, $101,700.00; Joshua Salazar, $84,750.00. The mortgages shall be due and payable when the plaintiff refinances the property or when the child reaches the age of 18 years.
If the plaintiff is unable to refinance the property within 90 days (to remove the defendant's name from the mortgage) the plaintiff shall list the property for sale and sell the property. The court shall retain jurisdiction to enforce this order for the sale of the property and the distribution of the sale proceeds after payment of the costs of sale. The Plaintiff may, at her option, refinance the Knapps Highway property to pay all or a portion of the obligation to the children.
B. 14-16 William Street, Stamford, CT: The plaintiff shall quitclaim all her right, title and interest in the property to the defendant and the defendant shall re-finance the mortgage removing the plaintiff's name within 90 days of the judgment. The defendant shall hold the plaintiff harmless on all liabilities associated with the property including, but not limited to, the mortgage, home equity loans, real estate taxes, utilities, remediation required by the City of Stamford and maintenance. If the Defendant is unable to refinance the property within 90 days the Defendant shall at that time list the property for sale and sell the property and the court shall retain jurisdiction to enforce this order for the sale of the property.
C. Real Property at 183 Knapps Highway, Fairfield, CT: The defendant shall quitclaim all his right title and interest in the Knapps Highway property to the plaintiff within 30 days of the judgment and the plaintiff shall refinance the mortgage/home equity loan removing the defendant's name. The plaintiff shall hold the defendant indemnified and harmless for all liabilities associated with the property including but not limited to the mortgage, home equity loan, real estate taxes, utilities, condominium fees and maintenance. If the plaintiff is unable to refinance the property within 90 days, the plaintiff shall at that time list the property for sale and sell the property and the court shall retain jurisdiction to enforce this order for sale of the property.
D. Real Property in New Hampshire: The defendant shall retain as his sole property the lot located in New Hampshire.
15. LEGAL FEES
The court finds the fees charged by the Guardian Ad Litem to be reasonable and necessary to protect the best interest of the minor children. The court finds that the parents have each spent an amount in excess of that charged by the GAL on their own legal fees and the plaintiff represented herself, Pro Se for a period of time. The plaintiff shall be responsible for 25% of the fees due the Guardian Ad Litem and the defendant shall be responsible for 75% of the fees payments due to the Guardian Ad Litem. Payment shall be made in full within 95 days of the date of judgment.
16. DEBTS
Each party shall be responsible for the debts shown on their respective Financial Affidavits.