KEYES v. KEYES, No. FA 06-4018934S (May 1, 2007)

STEPHEN F. FRAZZINI, JUDGE.

The plaintiff, Susan Keyes, has brought this action to dissolve her marriage of 14 years to the defendant, Edward Keyes. The parties appeared with counsel for a three-day trial in January and February of this year, testified, and offered certain exhibits into evidence. The parties having agreed to share joint legal custody and for their two minor children to live primarily with the plaintiff, the issues presented for trial were financial ones. The plaintiff seeks title to the marital home and 25 percent of the marital share of the defendant's pension, while the defendant asks the court to divide each one 50-50. The plaintiff also asks for alimony. The court has heard and carefully weighed all of the evidence according to the standards required by law, scrutinized and evaluated the credibility and demeanor of the parties, and considered the parties' arguments and proposed orders in light of the statutory criteria for awarding alimony and property.

The parties were married on April 24, 1992, in Branford, Connecticut. Both have lived in Connecticut for more than a year prior to the bringing of this action. Neither one has received any state or municipal financial assistance. They have two minor children. Rachel was born on July 9, 1993, and is now 13 years old. Emily was born on June 26, 1996, and is 9 years old. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation. All statutory stays having expired, the court has jurisdiction to dissolve the marriage.

The parties met in 1988. The plaintiff, a college graduate, was employed at Macy's Danbury store, where the defendant was also working while attending Western Connecticut State University. Later that year he left college after obtaining a job with the Branford police department and they moved into a Branford apartment. The plaintiff left her job at Macy's and opened a clothing store with her mother in Mystic, Connecticut. In 1991 they bought a home, each spouse contributing equal shares toward the down payment. After Rachel was born in 1993, the wife CT Page 5942 stopped working, in part because her husband wanted her to. Since going to work for the Branford police Department, the husband has worked the midnight to 8 a.m. shift. After coming home, he relaxes for a few hours and then sleeps from approximately 3 or 4 p.m. until time to go to work for his midnight shift.

Over the years his drinking during the hours between coming home and going to sleep became a serious problem for the marriage. He would spend much of his day drinking beer and watching television, rather than spending time with his wife and, after they were born, their children. When drinking, he would become argumentative. Ms. Keyes asked him several times to stop drinking, and he would for awhile, but then he would resume the old pattern. Gradually, the parties grew apart and developed lives that did not include the other. There were two occasions when the marriage might have been saved. In 2001 Ms. Keyes asked her husband to join her in counseling, but he initially refused. He then agreed, but Ms. Keyes believed she had already developed a personal relationship with the counselor that she did not want to share with her husband. A few years later, she asked Mr. Keyes to see if the police department had referrals to counselors, but he did not pursue her request. There is some evidence that on a few occasions the wife drank too much and might have a drinking problem, but her use of alcohol is not the reason this marriage broke down.

In addition to the husband's isolation from his wife resulting from his drinking and daily routine, his job schedule was also a problem for the marriage. After the wife quit working following the birth of their first child, Mr. Keyes' ability to obtain overtime work and income during the day provided necessary income for the family, but after Ms. Keyes went back to work in 2002 his overtime income was no longer so essential. Later, a job injury for which he received a $10,000 workers' compensation settlement made it difficult for him to do all the overtime. Ms. Keyes knew from the beginning that her husband enjoyed working the night shift, but neither one of them had envisioned, when he had begun that schedule, its effect on their relationship. As he gained in seniority, he could have obtained a transfer to the day division, but did not want to.

The husband presented evidence of what he claimed was financial misconduct by his wife. The husband always turned over to her his paycheck, from which he had $90 a week deducted to his credit union that he used for personal expenses. They had long agreed that she would handle the family finances and pay their bills. In 2004 she began using a credit card in just his name, and Mr. Keyes claims she did so wrongfully, but the court finds nothing untoward about her conduct. They CT Page 5943 functioned as a single financial unit, and whether a particular credit card was listed in just his name, just hers, or in both names was immaterial. The other thing he challenges is her handling of an accommodation they made for a friend who won $10,000 in the lottery. Because this person was not here legally, he apparently was not lawfully eligible to claim the prize, and instead Ms. Keyes did so, with her husband's knowledge and consent. She kept enough to pay for the tax consequences to them, but the evidence as to how she paid the friend his share is murky. She offered changing and not completely convincing explanations for her various withdrawals from joint funds. On the other hand, she did not appear to be deliberately lying, and the court concludes that she simply had a difficult time recalling the exact manner in which she repaid the friend. Despite the husband's claims, the evidence makes clear that nothing about his claims of financial shenanigans affected the longevity or breakdown of the marriage.

The court therefore finds that the primary cause for the breakdown of the marriage was the husband's decision to keep working the midnight shift and his drinking and isolation from the family when he was home. Although Ms. Keyes may originally have acquiesced in his decision to work the 12 a.m. to 8 a.m. shift, Mr. Keyes effectively chose that job shift over preserving his marriage. Perhaps if he had been more accessible to his wife when he was at home, a good marriage might have endured.

In his job as a police officer, the husband earns a salary of $1,099.60 per week. On the average he earns another $21.34 a week in overtime pay. He also receives an educational incentive and longevity pay from the police department of $21.83 per week and an annual uniform allowance of $1,000, which averages $19.23 per week. His overall gross pay is thus $1,162 per week. After deducting social security, medicare and tax withholding, mandatory union dues, and health insurance, his net pay is $826 per week. The wife works 9 to 3 daily as an administrative assistant in a medical office and earns $663 per week gross and $585 per week net after taxes.

Although they agree to divide their assets equally, they disagree about how to do so. Those assets consist of equity of $188,000 in the marital home, the husband's pension worth $372,000, the wife's Suzuki worth $12,000, the husband's Chevrolet worth $1,000, joint bank accounts in the wife's possession in the amount of $3,495, jointly owned stocks in her possession worth $1,729, the husband's credit union account with $4,4778, the CD from his workers' compensation award now worth $10,480, and the wife's 401K worth $6,843. All these items are marital property subject to equitable distribution. He lists credit card CT Page 5944 debt of $1,500; she lists credit card debt of $4,400, which includes $1,500 of joint debt, and a joint loan from her mother for improvements to the marital home and with a present balance of $23,753.

The plaintiff seeks a share only of the marital portion of the pension. The defendant's financial affidavit lists his pension as worth $372,000, but in his testimony he said that is the value of the marital portion. From that testimony the court infers that some portion of the pension may have been earned before the marriage of the parties, but neither party provided any evidence as to the value of the premarital portion.

The wife asks for title to the marital home, one-quarter of the marital portion of the husband's pension, and other assets worth approximately half of the overall value of the marital estate. Although agreeing to an overall 50-50 division of the marital assets, she asks that the husband's 50% share of the equity in the marital home, which would be $94,000, be awarded to him by adding that amount to his half portion of the pension. Because the husband's pension is not payable until he actually retires, she will not be able to receive any portion of the pension awarded to her until then. Using the value of his half-interest in the equity in the home to decrease her share, and increase his share, of the pension would not require the wife to wait until the husband's retirement from the police force to benefit from the value of the pension that would otherwise have been awarded to her. On the other hand, the wife's financial posture does not make it likely that she will be able to refinance the marital home, even if she were awarded full title to it. Thus, the husband will probably continue to be liable on the mortgage until the property is sold.

The court concurs with the parties that their estate should be divided relatively equally. The court also finds that the parties should share equally in the limitations on their assets: the husband will have to wait to enjoy his share of the equity in the marital home until after the youngest child graduates from high school or the wife sells the property, and the wife will have to wait to use her share of the husband's pension until he retires.

Although the husband does not want to share in the debt owed to his mother-in-law, that debt benefitted and belongs to both parties. The plaintiff's mother has shown considerable flexibility in the repayment obligations, however; for example, during the dissolution, she permitted her daughter to suspend making payments. Although the mother wants to be paid eventually, her past flexibility suggests she may continue to show such in the future to help her daughter. The court also finds that the parties should be each half responsible for the $1,500 in credit card debt listed on the wife's financial affidavit for the remaining debt owed for family expenses on the Chase Platinum card. Rather than require the husband to make payments on a schedule that the wife's mother may not require of the wife or to make periodic payments on the Chase debt, the court will instead award the wife assets in the amount of the husband's half liability on those debts and not include those assets in attempting otherwise to divide the estate relatively equally. The court CT Page 5945 will also take into consideration the amounts which each party has spent from marital funds to pay for counsel fees.

After considering all the evidence here in light of the statutory factors for equitable division of property, the court thus awards the wife title and exclusive possession of the marital home, subject to a mortgage given the husband for $87,000, half of the husband's pension, her Suzuki and 401K, and the New Alliance Bank accounts and stocks. The husband is awarded the tenancy in his apartment and all furnishings therein, half of his pension, the Chevrolet Baretta, the Certificate of Deposit, and the moneys in his credit union accounts. The wife shall be responsible for all debts listed on her financial affidavit and the husband for the debt on his.

The parties have stipulated that the defendant will pay presumptive support amount under the child support guidelines of $220 per week. The court finds that the actual presumptive amount is $213, but in deference to the parties' stipulation will order the defendant to pay the amount to which they had agreed.

After child support, the plaintiff will still be more than $150 per week short of her normal expenses, and the defendant will have a shortfall of more than $250 per week. The federal tax deductions for home mortgage interest and real property taxes will give the wife some additional net income, but the court did not have evidence about the current annual interest or taxes to determine how much. Using the amounts they had deducted in 2003 for these amounts and current tax rates would give her approximately an extra $16 per week, but since the mortgage interest rate or taxes may have changed and the amount paid for interest usually decreases each year in a fixed rate loan, the court cannot use the 2003 figures other than as indication that she will probably have some additional net income.

Although the wife has more years of schooling than her husband, she deferred her career to rear the children, and even now she does not work a full day in order to care for the children in the afternoon. By doing so, she may be avoiding daycare expenses during the school year, however.

After considering the evidence here in light of the statutory factors for awards of alimony, the court orders the husband to pay periodic alimony of $50 per week for a period of six years, the length of time requested by the wife in her proposed orders. By then the wife will have had ample time to rebuild her career.

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ORDERS

The court has carefully considered all of the evidence, including the exhibits and the testimony presented, according to the standards required by law. The court has observed the demeanor of the parties and evaluated their credibility. After considering all the statutory and regulatory criteria for orders regarding equitable division of property and debt, alimony, and child support, together with applicable case law and the evidence presented here, the court hereby enters the following orders:

1. Dissolution of Marriage

The marriage of the parties, having broken down irretrievably, is hereby dissolved.

2. Parenting Orders

The parties will have joint legal custody of the minor children, who shall reside with their mother. The father will have reasonable, liberal, and flexible parenting time.

3. Child Support

The defendant shall pay child support in the presumptive amount of $220 per week plus 41% of qualifying child care expenses and unreimbursed medical and dental expenses.

4. Tax Exemptions

The parties will each be entitled to claim one tax dependency exemption for the minor children. After only one of the children is eligible to be claimed as a dependent for tax purposes, the parties shall annually alternate the exemption.

5. Health Insurance

a. The parties shall each provide health and dental insurance for the minor children so long as such is available to either at a reasonable cost through its place of employment. If not available to either party, they shall cooperate to place the children on any public-funded health insurance for which the children are eligible. The provisions of General Statutes § 46b-84(e) are incorporated herein by reference.

b. The defendant shall cooperate with the plaintiff to enable her to CT Page 5947 apply for COBRA medical and dental benefits through his employer, but she shall be completely responsible to pay for her own health benefits.

6. Life Insurance

The husband shall obtain and maintain life insurance in the amount of $250,000 as security for alimony, child support, and post-secondary educational support for as long as he is under an obligation to pay any of these, and he shall name his wife as the exclusive beneficiary thereof.

7. Post-secondary Educational Support

The court shall retain jurisdiction to enter an order for post-secondary educational support upon motion or petition of either party.

8. Alimony

The defendant shall pay periodic alimony of $50 per week for six years. Alimony shall terminate upon the death of either party or the wife's remarriage. Alimony may be modified or terminated, as the circumstances warrant, should the plaintiff cohabit with another as that term is defined by statute and has been construed by the courts.

9. Equitable Division of Property

a. The wife is awarded title and exclusive possession of the marital home, subject to a mortgage given the husband for $87,000. The husband shall execute a quitclaim deed transferring his interest in the property to the wife; the wife shall execute a mortgage deed and note to her husband in the amount of $87,000; and the parties shall exchange such within thirty days of the date of this decision. The note shall become payable and due upon any one of the following, whichever occurs first: (i) one year after the minor child has graduated from high school, (ii) the wife's remarriage or civil union, or (iii) the death of the wife. The note shall run without interest until 90 days after the occurrence of any of the above events, at which time interest shall begin accruing at the annual rate of 5 percent. If she fails pay the note when due, the property shall be sold and the husband paid from the proceeds of sale. The wife shall be responsible for all mortgage payments, real property taxes, repairs and upkeep on the property; and she shall indemnify and hold the husband harmless on the mortgage.

b. The wife is also awarded the sum of $186,000 from the husband's CT Page 5948 pension, to be paid to her when he retires or any earlier date on which it may be transferred to her, her Suzuki and 401K, and the New Alliance Bank accounts and stocks.

c. The court retains jurisdiction over distribution of the husband's interest in the marital home and any sale necessary to effectuate it and to enter any qualified domestic relations order (QDRO) necessary to effectuate the division of the husband's pension. The parties shall share equally in the preparation of the QDRO.

d. The husband is awarded the tenancy in his apartment and all furnishings therein, the remainder of his pension, the Chevrolet Baretta, the Certificate of Deposit at the United Shoreline Credit Union, and the other funds in his credit union accounts.

e. Except as otherwise stated herein, the wife shall be responsible for debt listed on her financial affidavit and the husband for the debt on his. Each party shall indemnify and hold the other harmless on the liabilities for which these orders make that party responsible.

f. The parties shall divide the household furnishings and personalty from the marital home to their mutual satisfaction. If they cannot agree on such a division, they shall seek the mediation assistance of family services, but if still unable to agree thereafter each one shall submit a list to the court of property it wants, with a brief explanation as to why. The court reserves jurisdiction over division of this property.

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