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Kent v. Dipaolo

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

August 12, 2015

Richard Kent
v.
Florence Dipaolo

MEMORANDUM OF DECISION FOLLOWING DISSOLUTION TRIAL

Thomas D. Colin, J.

Introduction

This dissolution of marriage action was returnable to the court approximately two years ago on September 3, 2013. The parties are each represented by counsel. The trial took place over five days on July 21, 22, 23, 24 and 28. The parties introduced many exhibits during the course of the trial and the following witnesses testified: both parties, real estate appraisers for each party, a long-term friend of the defendant and a pension actuary hired by the plaintiff to evaluate the defendant's pensions. The court has carefully considered all of the evidence presented and the relevant statutes and case law, and makes the following findings.

Basic Jurisdictional Facts

The parties were married 17 years ago on March 21, 1998 in Stamford, Connecticut. They have one minor child: a son who is age 11. The court has jurisdiction. All statutory stays have expired. The allegations of the complaint are proven and found to be true. The marriage of the parties has broken down irretrievably. Neither party has been the recipient of any state or public assistance.

Background Facts

The parties met in March of 1989 at a party in Greenwich, Connecticut. At the time of this trial, the plaintiff/father was age 63 and the defendant/mother was age 71. The parties' minor son was born with the assistance of a surrogate after unsuccessful fertility treatments. Early in their relationship and long before the marriage, the plaintiff moved into a Stamford home owned by the defendant and paid rent to her for many years. She still owns that home today. The parties soon began a very unusual method of handling their bills that continued throughout the marriage until the parties separated in 2012 when the plaintiff left the home. This included a daily collection and storage of receipts for virtually everything the parties purchased. Those receipts were then tallied by the plaintiff and monitored by him through a monthly spreadsheet so that each party could pay their share. This included keeping track of such small details as how much was spent on phone calls, hot dogs, stamps, dog food and cookies. See exhibits 5, 6, U. The parties otherwise generally kept their financial lives separate and rarely filed joint income tax returns.

Mr. Kent

The plaintiff/father, age 63, has no health conditions that impact significantly his ability to work. He had prostate cancer and takes medication daily for a number of different issues. This is his first marriage. He has degrees from the University of Pennsylvania, Drexel and Columbia University. From Columbia, he obtained a master's degree in real estate development. He worked for ten years as an environmental scientist for the Environmental Protection Agency. It is clear from the testimony of the plaintiff that he is an extraordinarily intelligent individual.

He is now a Stamford realtor who earned in 2013 the sum of $76, 111 and in 2014 the sum of $7, 437. When he began his real estate career in 2004, he was named rookie of the year. He has been using his retirement accounts to fund his daily living expenses which include a monthly rental of $2, 850 plus utilities. At one point, he started taking his social security benefits but he has stopped doing so and will be repaying the benefits previously taken. The plaintiff owns a Maryland condominium that generates approximately $200 per month in positive cash flow. He has owned this property since the 1970s. His current sources of income are: his retirement funds, earnings from his real estate commissions, rental income from the Maryland property and dividends. According to the plaintiff's proposed draft income tax returns, his adjusted gross income in 2013 was $187, 590 and in 2014 was $126, 484. His income from real estate sales for the period of June 2014 through June 2015 was $24, 000. He claims that he owes a substantial amount in taxes. The plaintiff appears to be quite knowledgeable in the field of real estate and actively assisted his counsel at trial in the examinations of the various real estate experts.

At the time of the parties' marriage, the plaintiff was employed at Arthur Anderson. Before his current real estate career, the plaintiff also had a career in finance. His best year was in 1998 when he earned $168, 000. He has worked for Standard & Poor's, UBS and GM. Mr. Kent, who is now employed full time, is healthier and nine years younger than his wife, who is now fully retired. Although the defendant throughout the marriage earned substantially more income than the plaintiff, he now has a greater opportunity than the defendant to acquire assets and income post-dissolution. Nevertheless, he requests alimony of $750 per week from his wife, who will turn age 72.

In 2014, a year in which the plaintiff claims to have earned very little from employment, he has been able to afford to travel to various vacations (Disney, Poland, Caribbean cruise) and has made thousands of dollars of repairs to his automobile that he says is now worth only $3, 000. He has withdrawn from his retirements accounts over $400, 000 in the last three calendar years. See exhibits Z, AA, BB.

The plaintiff has gross weekly income from all sources according to his current financial affidavit of $2, 850. See exhibit 1. This includes withdrawals from his retirement accounts in the weekly amount of $2, 223. Thus, without including these withdrawals, his gross weekly income would reduce to $627. This includes a figure of $466 per week [$24, 232 per year] in earnings from real estate commissions. Since he has decided to stop taking his social security benefits, no income attributable to that is shown on his financial affidavit. His weekly expenses are $2, 601. He shows substantial credit card debt and estimated tax debts. He has retirement accounts that total $1, 055, 148; bank accounts that total $3, 665 and a Maryland condominium with equity of $117, 109. Based upon the evidence presented, the plaintiff has an earning capacity that is no less than $50, 000 per year. See Plaintiff's Proposed Orders dated August 4, 2015.

Ms. DiPaola

The defendant/mother will turn age 72 later this year. She is now retired from employment. She grew up in Brooklyn and Rockland County, New York. Her childhood friend, who testified at trial, described the defendant as coming from a poor, hardworking, immigrant family. She was previously married for 15 years; that marriage ended in divorce. She went to night school for ten years while she worked full-time to obtain a college degree. The defendant currently receives social security benefits on behalf of the parties' child in the approximate amount of $1, 350 per month and the parties agree that this benefit is based upon only the defendant's earnings.

The defendant was diagnosed with breast cancer in 2008. She had surgery at that time. In late 2014, she learned that the cancer had recurred and she is considering another operation. She also needs eye surgery and surgery on each hand.

The defendant has an impressive and accomplished work history that spanned 44 years. She worked her way up the corporate ladder from a junior entry level position to a managing director. Her specialty was in the area of tax benefits associated with leasing equipment. She entered the field in 1971. She worked at GE Capital from 1971 until 1980 and accumulated pension benefits during that period of time. She also worked at Xerox, Citibank, Bank of America, MetLife and GE two more times. Her three separate terms at GE were approximately as follows: 1971-1980; 1992-1994; and 2004-2009. She worked for GE for about 16 years, 11 of which were prior to the marriage of these parties.

The defendant, in 2014, received $40, 772 from her grandmother's estate. Her grandmother died in 1963 but, for various reasons, the defendant did not receive any of the money until recently. The funds have been kept separate from her other funds in a Bank of America account.

The defendant also provided substantial assistance to the plaintiff in his real estate career by referring him clients and other business contacts. Many of these resulted directly in income to the plaintiff. She also provided funds to assist the ...


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