MARCELLINO v. MARCELLINO, No. FA 96 0713847 (Dec. 1, 1997)

BISHOP, J.

This is a marital dissolution action commenced by complaint dated October 15, 1996. Based on the evidence presented at trial, the court makes the following findings and order. CT Page 13908

Norma and Joseph Marcellino were married on November 26, 1966 in Hartford, Connecticut. Both parties have resided continuously in Connecticut for several years. The parties have two adult children, David and Sarah, both college graduates, successfully fledged, and gone from the family nest.

The plaintiff, Norma Marcellino, nee Puzzo, is fifty five years old and in good health. She has bachelors and masters degrees, and a sixth year certificate. She is a tenured mathematics teacher employed by the Windsor Board of Education presently earning approximately fifty eight thousand, five hundred ($58,500) dollars a year. Additionally, Mrs. Marcellino is vested in a pension through the State Teachers' Retirement System. The parties have stipulated that the present value of this pension is three hundred twenty-six thousand, three hundred twenty-three ($326,323) dollars.

The defendant, Joseph Marcellino is fifty five years old and in good health. He has sustained some ligament damage to his knee that does not affect his ability to work. The defendant, who is also well educated, is a tenured social studies teacher with the Hartford School System, presently earning approximately sixty-nine thousand, eight hundred ($69,800) dollars a year. His earnings are greater than the plaintiff's because the Hartford teachers' contract, unlike Windsor's, provides for longevity payments. The parties have stipulated that the defendant's pension has a present value of four hundred twenty-one thousand, five hundred twenty-eight ($421,528) dollars. The defendant's pension has a higher present value than the plaintiff's because he has higher earnings and more years of teaching credited toward retirement than the plaintiff. While the plaintiff was teaching when the parties married, she took time off from full-time teaching to care for the children at home in their early years, returning to full-time teaching in 1977. The defendant has twenty eight years credited toward retirement. The plaintiff has twenty-six and a half years.

The parties continue to reside together in the marital home located in Newington, Connecticut. They have agreed that the residence has a fair market value of one hundred forty thousand, five hundred ($140,500) dollars with a mortgage balance of approximately sixty-one thousand, nine hundred ten ($61,910) dollars.

The parties own a vacation home in Eastham, Massachusetts, CT Page 13909 which they purchased in 1979 for thirty-six thousand ($36,000) dollars with a nine thousand ($9,000) dollar down payment. Subsequently, they made improvements to the Cape Cod property, and refinanced the original mortgage. The parties have stipulated that the Eastham residence has a present fair market value of one hundred fifty thousand ($150,000) dollars and a mortgage balance of sixty-three thousand, three hundred seventy-five ($63,375) dollars.

The decision by the parties to continue to reside in the family residence with this action pending appears to be an accommodation born of expediency. Based on the parties' evidence, it is evident to the court that the marital relationship has broken down irretrievably. The cause for the failure lies primarily with the defendant. In the early 1980's, the parties ceased having a physical sexual relationship, due, in large part, to hormonal changes in the plaintiff. Though the parties continued to dwell together, within a few years, the defendant began a secret life. He opened bank accounts in his own name, obtained a post office box number and a credit card in his own name, and conducted affairs with other women. All of this clandestine life was kept from the plaintiff until the defendant was deposed in conjunction with the pendency of this action.

During the earlier years of the parties' marriage, they pooled their incomes and jointly paid family obligations, reserving small amounts for their individual needs. As a part of his separate life, in 1992 the defendant began to take cash from his pay checks and to deposit funds from his employment directly into his secret accounts. While the total amount of these funds diverted from family use is not clear, the court notes that the defendant acknowledges that the amount is in excess of twenty to twenty-five thousand ($20,000 — $25,000) dollars, while the plaintiff claims the total is closer to forty thousand ($40,000) dollars. At the hearing, the defendant produced one bank account which shows deposits of slightly more than eleven thousand ($11,000) dollars. While admitting that he had another account in his name only, he brought no documents relating to the second account. He did admit, however, that from 1992 until the present, he routinely cashed approximately seven hundred ($700) dollars a month from his pay checks. Not all this money, however, has been in furtherance of his secret activities. A review of the one check register produced at trial indicates that a substantial portion of the funds were used for routine expenses unrelated to the defendant's private life. To add confusion to this morass, CT Page 13910 the defendant testified that of the sums he cashed from his pay checks, he expended no more than two thousand ($2,000) dollars on family needs. It's clear to the court that the defendant utilized a portion of his earnings to support a secret life in violation of the plaintiff's marital trust. Although the precise amount can not be determined, it appears to the court that it is in the range of twenty-five to thirty thousand ($25,000 — $30,000) dollars.

The defendant's unfaithfulness took place while the marriage was already eroding. After the parties ceased having a physically intimate relationship, they co-existed in polite non-confrontation. Although the plaintiff was content to live together in this platonic situation, the defendant became more distant, less interested in socializing with the plaintiff and mutual friends, and more withdrawn. This erosion continued until the plaintiff finally told the defendant that she no longer wished to remain in this vacuous relationship. It is clear to the court that the marriage is hopeless and should be dissolved. Accordingly, a degree may enter dissolving the marriage on the basis that it has broken down irretrievably.

Notwithstanding the failure of their marriage, both parties were actively involved, supportive, and loving parents to their two children. They also appear to have equally contributed to the acquisition, maintenance and appreciation of the assets they have amassed during the marriage. As an exception, the court notes that the plaintiff received the sum of ten thousand ($10,000) dollars as a gift from her mother, an amount which she holds in a certificate of deposit, and which has grown in value with accumulated interest. Additionally, the plaintiff has inherited a partial interest in a home in East Hartford. This is a five room house with no cellar. While title to this property has not vested because the estate remains in probate, it appears that the property has a value of approximately sixty thousand ($60,000) dollars.

The parties' dispute concerns assets and the issue of alimony. Though they have stipulated to the value of their assets, they do not agree on the allocation. Additionally, the plaintiff seeks alimony.

Both parties are well situated in tenured teaching positions. While the court heard testimony from the defendant that he plans to take early retirement in June, 1998, and the court notes that CT Page 13911 he has informed the Hartford Board of Education of this intention, the court views this plan, if fulfilled, as unilateral and voluntary. The fact that the defendant has expressed a present intent to leave his employment at the end of this school year does not alter the character of his present earnings and the fact that he is a tenured teacher entitled to remain in his position until mandatory retirement at age seventy. Nor does it convert his pension expectancy into a current pay status. The court views each party's vested entitlement to the future receipt of a pension benefit as an asset. As such, the pensions are amenable to present value analysis and subject to disposition in accordance with the criteria set forth in Connecticut General Statute 46b-81.

The court orders the defendant to pay alimony to the plaintiff in the amount of one hundred ($100) dollars a week for a period of two hundred sixty weeks. While considering all the relevant statutory and decisional criteria in making this determination, the court focuses primarily on the length of the marriage, the defendant's greater earnings, the plaintiff's primary care responsibility for the children while they were young, and the cause of the dissolution. Neither the term nor the amount of alimony shall be subject to modification, except that it shall terminate upon the earlier death of either party or the plaintiff's remarriage. While the court is mindful of the defendant's stated desire to retire at the end of this school year, the court views that eventuality, should it come to pass, as entirely voluntary, and without bearing on the defendant's earning capacity.

With respect to property, the court notes and appreciates that both parties, with the aid of counsel, have stipulated to the value of marital assets. The parties' stipulation is made appendix A to this Memorandum.

The court assigns the following assets to the plaintiff:

Pension ($326,323), IRA's ($8,867), Annuity ($32,000), Ford Taurus ($4,000), Blazer ($2,000), Bank Accounts ($4,500), Eastham residence ($86,623 equity). The wife shall pay the Eastham mortgage and hold the husband harmless therefrom. These assets total four hundred sixty-four thousand, three hundred thirteen ($464,313) dollars in gross value.

The court assigns the following assets to the defendant: CT Page 13912

Pension ($421,528), Annuity ($51,108), Bank Accounts ($3,000), Ford Truck ($2,000), Life Insurance cash value ($1,500). These assets total four hundred seventy-nine thousand, one hundred thirty-six ($479,136) dollars in gross value.

The Newington residence shall be immediately placed on the market for sale at a listing price mutually acceptable to the parties, and sold at a mutually agreed price. At the insistence of either party, the property shall be sold to a bona fide purchaser willing and able to pay 90% of the listing price with normal contingencies and market financing. During the pendency of the sale, the parties may continue to reside together in the residence, sharing equally all costs associated with ownership, maintenance, and use of the residence. In the event either party relocates from the residence prior to its sale, that party shall be responsible for one half the taxes and insurance from the date of departure until closing. In the event both parties relocate, they shall be equally responsible for payment of all household-related expenses just as though both continued to reside in the property. This co-equal obligation shall pertain at such time as both parties, or neither of them, dwell in the residence. Upon sale of the property, and after payment of all closing costs, the net proceeds are to be divided so that the total division of assets of the parties, taking into consideration the assets and values listed on Appendix A, shall be equal.

The defendant shall designate the plaintiff as the beneficiary of his existing life insurance policy designating her to receive a death benefit equal in amount to his remaining alimony obligation. This policy shall remain in full force and effect while the defendant's alimony obligation continues. The defendant shall provide written proof of his compliance with this obligation, upon written request from the defendant, once a year during the term of his alimony obligation.

The parties shall divide their personal property to their mutual satisfaction. The court shall retain jurisdiction over the property aspects of this judgment to make any further orders that may be necessary in order to effectuate the provisions of this decision.

No award of counsel fees is made to either party. CT Page 13913

Counsel for the plaintiff shall prepare the judgment file.

Bishop, J.

APPENDIX A

NORMA P. MARCELLINO HARTFORD/NEW BRITAIN AT HARTFORD VS.

JOSEPH J. MARCELLINO, JR. NOVEMBER 17, 1997

STIPULATION

PLAINTIFF AND DEFENDANT STIPULATE TO THE FOLLOWING FACTS:

1. The marriage is broken down irretrievably.

2. The marital real estate consists of 2 pieces of property with the following location and valuation:

a. 187 Old Farms Drive, Newington, CT. Fair market value: $140,500 — 61,910 (mortgage) --------- EQUITY $ 78,590

b. 1035 Great Pond Road, Eastham, MA. Fair market value: $150,000 — 63,375 (mortgage) -------- EQUITY 86,625

3. The marital estate contains the following IRAs, annuity, bank accounts which are valued as follows:

a. Husband's Valic Annuity (as of 9/30/97) $51,108 b. Wife's [ Valic] Gen. Am. Annuity (as of 9/30/97) $32,000 c. Wife's Fidelity IRA $ 6,191 d. Wife's Fleet IRA $ 2,676 e. [ Husband's] ^fn Bank Account (+ or -) (W) $ 4,500 f. [ Wife's] ^fn Bank Account (+ or -) (H) $ 3,000

CT Page 13914

4. The marital estate contains the following cash value life insurance:

a. Husband $1,500

5. The marital estate contains 3 vehicles one of which is at the Cape Cod property. The values are estimates and represent equity.

a. Ford Wagon — wife $4,000 b. [ Ford truck (1985)] ^fn — Cape Cod 1989 Blazer $2,000 c. Ford truck (1997) — husband $2,000

6. The parties each have a teacher's pension whose current values are as follows:

a. Husband's $421,528 b. Wife's $326,323

7. Total marital estate is $1,022,041.

_________________________ ________________________ Norma P. Marcellino Joseph Marcellino, Jr. Plaintiff Defendant

______________________________ _________________________ [Bonnie C. Mangan]^fn Barbara J. Ruhe Attorney for the Plaintiff Attorney for the Defendant