Timm v. Timm

Kelly Timm v. Jeffrey Timm

No. TTDFA165006885S

Superior Court of Connecticut, Judicial District of Tolland, Rockville

November 14, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE PENDENTE LITE MOTION FOR CONTEMPT AND DISSOLUTION

Sheila M. Prats, J.

This dissolution of marriage action was commenced by the plaintiff wife, Kelly Timm, against the defendant husband, Jeffrey Timm, by summons and complaint dated August 12, 2016, and made returnable to this court on August 30, 2016. Automatic orders were served on 8/12/16. The case was tried before the court on July 13, 2017 and July 14, 2017. Both parties were represented by competent counsel. The court heard testimony from each party and from Steven Pedneault, a forensic accountant. The parties submitted financial affidavits dated July 13th, 2017 and April 10th, 2017. Each party introduced a number of exhibits.

At trial, the parties disagreed about the division of certain assets. The principal issues this court must decide concern the distribution of the marital home, the distribution of the defendant's pensions from CVS and other deferred compensations plans including a 401k and IRA, CHET accounts and the award of alimony, child support, insurance and the distribution of some personal property. Finally, there is an unresolved pendente lite motion for contempt, filed by the plaintiff. The plaintiff is also seeking an award of attorneys fees as well as an expert witness's fee. The plaintiff is seeking restoration of her maiden name Ford.

Upon careful consideration of the evidence presented, the parties' briefs, the pertinent statutory law, in particular C.G.S. § 46b-62 (attorney fees), C.G.S § 46b-81 (assignment of the marital estate), C.G.S § 46b-82 (the award of alimony), C.G.S. § 46b-84 46b-56 (child support and child custody) and the relevant case law, and having observed the demeanor and assessed the credibility of the parties and the other witness at trial the court finds and orders as follows.

FINDINGS OF FACT

The plaintiff and the defendant were married in Westfield Massachusetts on June 14, 1992. Both parties have resided continuously in the State of Connecticut for at least one year before this action was filed. All statutory stays have expired and the court has jurisdiction over this matter. The allegations in the complaint have been proven and true. The court finds that the marriage has broken down irretrievably, with no hope of reconciliation. In addition, the court finds the following by a fair preponderance of the evidence.

The plaintiff and defendant have been married for twenty-five years and raised two daughters, Dakota age 17 and Cheyenne age 16, who are both minors. The plaintiff filed for a divorce on August 11th of 2016. The plaintiff is 49 years of age; the defendant is 53 years of age. The plaintiff has a tenth grade education. During the course of the marriage, the parties agreed that the plaintiff would stay at home with the children, caring for them and meeting all of their needs. She worked part-time in the school cafeteria when the children were younger. She presently works as a home health aide for 10 hours per week and earns $11.00 per hour. For the most part, the plaintiff was not included in family financial decisions and consequently was unfamiliar with most of the household expenses, except for snow plowing.

The defendant is a pharmacist, currently employed at CVS. Historically, he worked third shift and had significant overtime, up to as much as 65 hours per week. As evidenced from their 3 prior tax returns, he did very well financially. In 2014 the tax return indicates a gross income of $172, 449.00, $172, 888.00 in 2015 and $242, 145.00 in 2016, almost all of which came from the defendant's income. According to the parties' financial affidavits, the plaintiff represents that she earns $70 per week and receives $118 per food stamps. The defendant represented on his first financial affidavit dated 8/29/16, that he earned $2, 118 per week net income but on a subsequent affidavit dated 7/13/17 he reported that he earns $1, 552 as net income. At the trial, the defendant testified that CVS has reduced his hours and in addition, he is now suffering from health issues that have resulted in him not being able to work additional overtime. He testified that he is on pain medication, and that he now suffers from varicose veins and anxiety, coupled with chronic depression. As a result, the defendant claims that between the filing of his first and second financial affidavits, his work hours have decreased substantially to 30-35 hours per week and his income has reduced substantially. Even giving the defendant the benefit of the doubt that he does suffer from some physical and mental health issues, this court understands the reduction in the defendant's work schedule but also finds that there is no reason why the defendant is not able to work the standard 40 hours per week.

The plaintiff attributes the breakdown of the marriage to years of dealing with the defendant's anger issues, which she described were exhibited as mood swings, temper tantrums, yelling and screaming obscenities at her and the children. The court notes that the defendant was arrested on two occasions, and he ultimately pled to Threatening and a Violation of Conditions of Release. The total effective sentence was two years suspended and three years of probation. The conditions of his probation include, but are not limited to, no contact with the children, except as ordered by the family court. A standing criminal protective order was issued at his sentencing, including, but not limited to, a residential stay-away and no contact with the plaintiff. The parties agreed that the plaintiff should be awarded sole custody of the minor children. The defendant is requesting visitation with the children and proposes having a third-party facilitator. The plaintiff testified that the children do not want contact with the defendant at present time. The plaintiff testified that both children have been subjected to the defendant's anger, his yelling and calling them names and his swearing obscenities at them. Further, the children witnessed domestic violence in the incident of July 9th, 2016 that resulted in the defendant's first arrest. Consequently, the plaintiff and her children have not had any contact with the defendant in a significant period of time. The defendant conceded that his behavior did contribute to the final breakdown of the parties' marriage.

Realty

The marital home was purchased in 2011. At the time of trial, the house had been placed on the market for sale. The sale price was reduced in early 2017 to $375, 000.00 and at the time of trial there was a sale pending. This court has no sworn testimony as to whether the house was eventually sold. Even though the defendant was paying $1, 200.00 in child support and alimony, the plaintiff did not maintain the payments on the mortgage on a timely basis. As a consequence, the mortgage was in arrears by $8, 000.00 dollars. Testimony established that the defendant paid at least two mortgage payments in 2016. The parties did not submit any testimony or a home appraisal, nor did they stipulate as to the value of the marital home. The only evidence of value entered without objection for this court's consideration was Exhibit FF. This exhibit is a report dated June 19, 2017, by Thomas Clark, a mortgage broker, who conducted a physical inspection of the property at 73 Suncrest Drive Ext. in Somers CT. He opined that the house should sell somewhere in the $310, 000.00-$320, 000.00 range. The parties, in their financial affidavits, listed the outstanding mortgage as between $234, 000.00-$240, 000.00. Based upon this limited information of value, this court finds that the equity in the marital home is between $76, 000.00 and $86, 000.00.

The defendant purchased a home in 2016 in East Longmeadow, Massachusetts. He used $32, 000.00 from the marital assets to purchase his home. He values that property at $126, 000.00.

Other Assets

The parties own two automobiles. The Dodge Nitro is operated by the plaintiff. The Hummer H3 is operated by the defendant. The defendant is requesting that certain property be returned to him. The property is listed in Defendant's Exhibit GG. The plaintiff testified that the piano was gifted by her mother-in-law to the children. The defendant testified that the children don't know how to play piano and that the piano was never gifted to them. The piano clearly has sentimental value to the defendant and should be owned by the defendant. The plaintiff did testify that some of the items were already returned to the defendant by way of his brother. The parties have assets in banks and retirement accounts last valued in May 2017. Plaintiff's Exhibit #1:

Bank of America Checking #2698--$1, 587.86

Bank of America Savings #6422--$20, 057.09

Bank of America Checking #7322--$0.00

Investment-Acorn Securities, LLC #7916--$2, 010.88

CVS Stock Purchase Plan--$15, 854.59

CVS 401K--$294, 440.71

E-Trade #9407--$2, 386.07

Wells Fargo #5119-Ohio An.--$44, 199.24

Wells Fargo #5305--$169.20 (July 31, 2016--$22, 174.06)

TD Ameritrade #0035--$18, 206.34 (July 31, 2016--$87, 858.05)

TD Ameritrade #6240--$114, 678.90

Chet-TD Ameritrade #68-01 Dakota--$0.00 (July 31, 2016--$34, 091.28)

Chet-TD Ameritrade #68-02 Cheyenne--$0.00 (July 31, --$33, 872.26)

The parties had a total of $636, 925.00 in assets comprised of a combination of different checking, savings, educational and retirement's accounts, in addition to cashing out the children's CHET accounts, the defendant also engaged in other transactions that resulted in a decrease in those assets down to $531, 590.88 or a difference of $105, 334.12. The...