Connecticut

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Jane Endicott v. John Endicott,
No. FA030090572 (Conn.Super. 04/27/2004)

FA030090572

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD, AT LITCHFIELD

April 27, 2004, Decided
April 27, 2004, Filed

NOTICE: [*1] THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: Brunetti, J.

OPINIONBY: Brunetti

OPINION: MEMORANDUM OF DECISION

This is an action for dissolution of marriage and other relief brought to the Judicial District of Litchfield. The plaintiff appeared through counsel, the defendant appeared Pro Se. The plaintiff proceeded on her complaint dated June 24, 2003. The matter was heard by the court on April 6, 7, 8, 2004.

The court finds the plaintiff and defendant intermarried March 10, 1979 at Scarsdale, New York, and have resided in the state of Connecticut for at least twelve months prior to the bringing of this action. During the course of the marriage the parties adopted two daughters, Isabelle, born November 7, 1984, and Ann, born October 22, 1987. No other children have been born to the parties since the date of the marriage and the plaintiff is not currently pregnant. Neither the plaintiff, the defendant, nor the minor child have been the recipients of state or local assistance.

The plaintiff is 55 years of age, born December 3, 1948, and is in good health. The plaintiff obtained [*2] a Bachelor's degree from Boston College in 1970 and a Law degree from Fordham Law School in 1975. She is currently retired.

The defendant is 57 years of age, born August 7, 1946 and is in good health. The defendant is a graduate of Harvard College and the University of Pennsylvania Law School. He is also currently retired.

The parties met in 1977 at a New York City Bar outing. At the time of their meeting the plaintiff was employed in the trust department of Morgan Guaranty Trust Co. and the Defendant was working for a New York City law firm and both were residing in New York City. Shortly after their marriage in 1979, the parties moved to Litchfield, Connecticut. The defendant had taken an Associate general counsel position with a firm called the Barnes Group Inc., located in Bristol, Connecticut. The plaintiff testified she was not in total agreement with the move, because she had to leave her job in New York and take the Connecticut Bar Exam due to her not being eligible for reciprocity. The defendant left the Barnes Group Inc. in 1983 and took a position with a company called Maxus Energy Corporation located in Dallas, Texas in 1984. He worked there as Senior Counsel through [*3] 1993. In 1993 he took a position as a staff attorney with a Dallas Law firm named Gardere & Wynn. In 1995 the defendant retired.

The plaintiff after being admitted to the Connecticut Bar took a position with the clerk's office in the Judicial District of Litchfield for the period of 1979 to 1981. In 1982 she was elected to a four-year term as Probate Judge for the Litchfield Probate District, in addition she worked part-time with a Woodbury law firm named Sturges and Mathes. When the defendant took the job in Texas the parties had what was described as a commuter marriage until the plaintiff's term as Probate Judge ended in 1986, when she moved to Texas. The plaintiff testified she enjoyed being the Judge of Probate and would have run for a second term were it not for relocating to Texas. In Texas she worked in the Trust Dept. for Texas Commerce Bank from 1987 to 1990. She left that position to raise her young daughters and from 1992 to 1995 worked part-time in the Trust Dept. of Commerce Bank. In 1995, the defendant decided he was financially secure enough to retire and though he wanted the plaintiff to continue working, they decided to retire and move back to Litchfield, where they [*4] have resided until the present time. Both parties are admitted to practice law in Connecticut, New York and Texas. Since the date of their retirement both parties have worked sporadically as arbitrators, or have taught courses through local agencies.

The parties testified that during the course of the marriage both parties deposited their paychecks into a joint account. Both parties received gifts of cash and stocks from their parents. In 1992, the defendant's aunt died leaving approximately $ 453,000.00 to him which he invested into the joint account. The plaintiff's mother during the course of her life gifted over $ 236,000.00 to the parties. It was these funds along with the sums earned by the parties during the marriage which allowed the parties to retire in 1995. Though the parties have a significant amount of assets, their financial situation is fairly simple to understand.

The parties presently own three pieces of real property. A jointly-owned condominium located in Litchfield, which the parties agree is worth $ 390,000.00. A thirty-eight-acre parcel of raw land, located on Milton Road in Litchfield, which the defendant purchased in his name in 1999, which the parties agree [*5] is worth $ 500,000.00 and an eighteen-acre piece of raw land in the defendant's name located in Washington, Connecticut. The parties disagree on the value of the Washington land. The defendant's father in 1975 deeded 33.582 acres of raw land located in Washington, Connecticut to the defendant and an Eve Endicott. In 1985 Eve Endicott quit claimed her interest in this property to the defendant. n1 The parties agree this land was worth $ 38,000.00 at the time of their marriage. In 1999, the defendant sold fourteen acres of this parcel and bought the thirty-eight-acre parcel in Litchfield in what has been described as a tax deferred exchange under Section 1031 of the Internal Revenue Code. The plaintiff had an appraisal of the Washington land done by a David Jalbert a certified appraiser who valued this land at $ 577,000.00 as of October 3, 2003. n2 The plaintiff testified she believed the land was worth One Million dollars and the defendant had told her he thought it was worth Eight to Nine Hundred Thousand and he would sell it for that. The defendant testified that he agreed with Mr. Jalbert's appraisal. The defendant testified he had stated he thought the property [*6] was worth eight to nine hundred thousand dollars, and he would sell it for that. The defendant also testified this was a "nice piece of land, with views."

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n1 Plaintiff's Exhibit Number 21.

n2 Plaintiff's Exhibit Number 6.

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The court also heard testimony from a Diane Stevens, a licensed real estate broker with Sotheby's Real Estate in Washington Depot. Ms. Stevens testified she has been a broker for nine years and is familiar with property values in this area. She testified that on March 10, 2004 she listed the property for 1.2 Million dollars, and that Mr. Endicott agreed with this listing price. The court finds it unfathomable that such an experienced broker would realistically list this property for more than twice its appraised value, especially in light of the fact the defendant wanted a quick sale as evidenced by the listing agreement. n3 The court also takes judicial notice that Real Estate values in Litchfield County have been on the rise in the past few years, a fact the court doubts anyone would [*7] contest. Based on all these factors the court finds the value of the Washington Land to be ($ 800,000.00) Eight Hundred Thousand dollars. The court for the record has not considered the O'Hazel appraisal or the alleged One Million dollar offer in arriving at its figure. The court notes all three of these properties are owned free and clear of any mortgages.

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n3 Plaintiff's Exhibit 24, which states the listing is from March 10, 2004 to April 2, 2004.

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In addition to the real estate the parties have substantial sums in Investment and IRA accounts. The defendant on his financial affidavit dated April 1, 2004 lists a retirement fund with Fidelity Trust valued at $ 511,000.00 and Investment funds with Fidelity Trust of $ 706,000.00, both funds include stocks, bonds, and other financial vehicles.

The plaintiff lists on her financial affidavit dated April 6, 2004 three IRA accounts with Fidelity Trust which total $ 206,000.00 and an Investment Account which has $ 237,000.00 in it. In addition the plaintiff lists a distribution [*8] from a testamentary trust from her father which totals $ 219,000.00. The plaintiff testified that when her father died in 1984 he set up a trust which terminated upon the death of her mother, who died in December 2003 while residing in the state of Montana with her brother. The plaintiff to date has received $ 150,000.00 from her father's trust and expects to receive another $ 69,000.00 for a total of $ 219,000.00. The plaintiff testified that she is the personal representative of her mother's estate which is valued at approximately $ 1,162,000.00 n4 and is presently in Probate in Montana. This estate is to be divided in three equal parts, between the plaintiff, her brother and the children of a deceased sibling. The plaintiff testified that her net one-third share after the costs of administration should be approximately $ 332,000.00. The last will and testament and codicils thereto of Jane McMahon n5 provide that the net one-third of her estate payable to the plaintiff go into the Jane McMahon family trust n6 for the benefit of the plaintiff and her two daughters. This trust was described in detail in the testimony of Attorney Suzanne Walsh Brown, from the firm of Cummings and Lockwood. [*9] The parties stipulated Atty. Brown was an expert in the area of trust and estate planning. Atty. Brown described this trust as "Spendthrift Trust," and as a generation skipping trust. She testified this trust is not yet funded and will become funded upon the settlement of the estate of Jane McMahon. The plaintiff is both the trustee and a beneficiary of this trust. Atty. Brown testified that this trust has no ascertainable value because of the inquiry provisions found on page three of the trust. The trust allows only for the use of the income or corpus for the health, education, support and maintenance of the beneficiaries. Before any part of the corpus of this trust can be used an inquiry must be made by the trustee into other resources of the beneficiaries before any principal can be distributed. The court has previously noted the substantial assets of the plaintiff and finds it difficult to fathom a situation where this trust would be invaded. The benefit of this trust is that under its generation skipping provision it would not be included in the estate of the plaintiff upon her death and would go directly to her daughters provided each has attained the age of thirty years.

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n4 Plaintiff's Exhibit Number 10. [*10]

n5 Plaintiff's Exhibit Number 32, 33 and 34.

n6 Plaintiff's Exhibit Number 9.

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The defendant claims this trust has an ascertainable value and should be used by the court in calculating the property distribution in this case. The court does not agree. The court finds this trust is of no value to the plaintiff because, 1) the trust is unfunded at this time, 2) the value is unascertainable, and 3) the restrictions on use of the funds precludes it having any real value to the plaintiff.

The parties agree the marriage has broken down irretrievably with no chance of reconciliation. The court finds the marriage started to breakdown sometime in 2001, and that both parties contributed to the breakdown of the marriage.

The real question for the court here is how to divide up the assets. The distribution of assets in a dissolution action is governed by General Statute 46b-81, which provides in pertinent part that a trial court may "assign to either the husband or wife all or any part of the estate of the other. In fixing the nature and value of the property, if any to be assigned, [*11] the court, after hearing the witnesses, if any of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health station, occupation, amount and sources of income, vocational skills, employability, estate liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in the value of their respective estates." This approach to property division is commonly referred to as an "all property" equitable property distribution scheme. Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).

The defendant argues that the Washington property which was his prior to the marriage should be his and not considered a marital asset. He further argues that the bulk of his retirement and investment funds were either earned by him or as a result of his inheritance from his aunt. In addition he believes the plaintiff has sufficient assets to meet her needs and does not need some contribution from his assets, and that she is capable of [*12] working. The plaintiff argues that this is a twenty-five-year marriage. That both parties worked and contributed to the accumulation, preservation and appreciation of their assets. That though she admittedly disliked cooking and housekeeping she did make a home for the parties and actively participated in the raising of their daughters. She argues the defendant is also able to work.

"Connecticut General Statute 46b-81, unlike the property distribution statutes in several other states, does not limit the distribution powers of the court to property acquired during the marriage. While the court does not have the power to divide property acquired after the marriage has been dissolved, the statutory criteria to be considered in arriving at a property distribution is generally considered to authorize the court take into account the assets each party brought to the marriage . . . While the nature and extent of the assets owned prior to the marriage is clearly relevant, nothing in the statute itself or the judicial decisions contains any indication that a spouse has an absolute entitlement to retain assets he or she owned prior to the marriage." Connecticut Practice [*13] Series, Vol. 7, Section 26.17, pg. 494. "While the court has discretion to allow or disallow one spouse to share in the assets acquired by the other after separation; Papageorge v. Papageorge, 12 Conn.App. 596, 600, 533 A.2d 229 (1987); a court is not prohibited from awarding one spouse a share in the other's assets no matter when acquired . . ." Roach v. Roach, 20 Conn.App. 500, 508, 568 A.2d 1037 (1990). Connecticut's Appellate courts have held that, "While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the particular circumstances of each case." Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980), Jackson v. Jackson, 17 Conn. App. 431, 434, 553 A.2d 631; 17 Conn. App. 431, 553 A.2d 631 (1989).

This court having considered the provisions of General Statutes 46b-82 regarding alimony, 46b-81 regarding property division, 46b-84 regarding child support and Public Act 02-128 regarding post-majority payment of college expense, enters the following orders.

ORDERS [*14]

A. BY WAY OF DISSOLUTION

1. The marriage of the parties is dissolved and each party is declared single and unmarried.

B. BY WAY OF ALIMONY

1. Neither party shall pay alimony to the other as each has sufficient assets to support themselves.

C. AS TO CUSTODY AND CHILD SUPPORT

1. The parties are awarded shared physical custody of the minor daughter Anne.

2. Since neither party requested child support due to shared custody agreement, nor did either party submit a child support guidelines worksheet, the court finds this deviation from the Connecticut Child Support Guidelines to be appropriate in this case. Should either party request child support, the parties may return with the appropriate child support guideline worksheets. Any order of child support shall be retroactive to this date. The defendant is ordered to maintain medical insurance, including dental and optical, for both children as long as they are eligible and the defendant shall be responsible for all unreimbursed medical expenses and any co-pays.

3. The wife shall be responsible for her own health insurance.

D. POSTMAJORITY EDUCATION

1. The court finds each child should have sufficient assets in either their accounts [*15] with Fidelity Trust or their bank accounts to pay for college. In the event these funds are not sufficient, the court retains jurisdiction to make any orders allowed by Public Act 02-128.

2. The defendant shall be responsible for maintaining and administering the Fidelity Trust and Bank accounts of the daughters until they reach age twenty-one. The defendant shall however, furnish the plaintiff with copies of any checks written from these accounts and any withdrawals made from these accounts. The defendant shall also furnish to the plaintiff by May 22, 2004 a copy of the latest statement for each of these accounts showing the present balances. The defendant shall by the 15th of January of each year starting January 15, 2005 furnish the plaintiff with a copy of the year-end statements of the daughters' accounts.

3. The defendant shall retain control of the yet unfunded life insurance trust account listed on the Plaintiff's affidavit with Northwestern Mutual Life Insurance.

E. PERSONAL PROPERTY

1. The parties agreed that the personal property has been split by them. If any dispute arises the court orders the alternate pick method agreed upon by the parties be implemented, with the [*16] plaintiff having the first pick.

2. Each party shall retain the automobile in his/her possession and the automobile used by the older daughter Isabelle shall remain in the plaintiff's name. The plaintiff shall be responsible for maintaining the auto insurance on her and Isabelle's vehicle and the defendant on his vehicle.

3. The family pet Lucy is awarded to the plaintiff by agreement.

F. INVESTMENT, RETIREMENT AND PENSION ACCOUNTS

1. The plaintiff shall retain all the retirement and investment accounts listed on her financial affidavit, including any inheritances from her father and mother free and clear of any claim by the defendant.

2. The defendant shall retain in full his retirement account listed on his financial affidavit, in the present value of $ 511,000.00. The defendant shall transfer to the plaintiff $ 300,000.00 out of his investment account with Fidelity trust by means of a QDRO or other appropriate vehicle. The cost of any transfer shall be borne by the defendant. The balance of the investment account shall be the defendant's free and clear from any claims by the plaintiff. This transfer shall take place by 5:00 P.M. on May 31, 2004.

3. The plaintiff shall receive [*17] the funds in the Torrington Savings Bank account and the Litchfield Bankcorp accounts.

4. Each party shall be responsible for the debts listed on their financial affidavits.

G. REAL PROPERTY

1. The plaintiff is awarded the Litchfield condominium free and clear of any claim by the defendant, and the defendant shall transfer his interest to the Plaintiff by Quitclaim deed by May 10, 2004.

2. The defendant is awarded the thirty-eight acres of land on Milton Road in Litchfield free and clear from any claim by the plaintiff.

3. The Eighteen acres of land in Washington, Connecticut is ordered sold. After payment of all normal closing costs, including any real estate commission, and all capital gains taxes, the net proceeds are awarded (75%) Seventy-five per cent to the defendant and (25%) to the Plaintiff. The property shall be listed with a broker chosen by the defendant by April 30, 2004. Any sale of the property shall however be approved by the court.

H. ATTORNEY FEES

1. The plaintiff shall be responsible for her own attorney fees and costs.

I. TAX RETURNS

1. Each party shall file separate state and federal tax returns for the year 2003, unless a joint one has already been filed. [*18] Any refund or payments due shall be divided equally, in the event a 2003 return has been filed.

2. Each party shall be entitled to claim one child as an exemption as long as both are eligible. When only one child is eligible, the parties shall alternate years with plaintiff having the first year.

J. PLAINTIFF'S REQUEST RE NAME CHANGE

1. The plaintiff's request to return to her maiden name of Jane Scott McMahon is granted.

BY THE COURT

Brunetti, J.

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