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Wilson v. Di Iulio

Court of Appeals of Connecticut

August 27, 2019

HEATHER WILSON
v.
MICHAEL Di IULIO

          Argued March 11, 2019

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Olear, J.; judgment dissolving marriage and granting certain other relief; thereafter, the court denied the defendant's motion for an articulation, and the defendant appealed to this court. Affirmed.

          John F. Morris, for the appellant (defendant).

          Steven R. Dembo, with whom were Caitlin E. Kozloski and, on the brief, P. Jo Anne Burgh, for the appellee (plaintiff).

          DiPentima, C. J., and Bright and Moll, Js.

          OPINION

          MOLL, J.

         The defendant, Michael Di Iulio, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Heather Wilson, and entering related financial orders. On appeal, the defendant claims that the court erred by (1) failing to award him more than nominal alimony despite the substantial disparity in the parties' incomes and ability to afford expenses and (2) making a property award enforceable by a modifiable alimony award. We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

         The following facts, as set forth in the court's memorandum of decision, [1] and procedural history are relevant to our discussion. The parties began dating in 1991, when they both were employed by the Office of the Attorney General. The plaintiff was, and continues to work as, an assistant attorney general; the defendant worked as an accountant until 2002 or 2003, when he retired. The parties were married on October 6, 1999. By complaint dated June 7, 2016, the plaintiff commenced the present action seeking dissolution of the parties' marriage.

         The parties have two children, a daughter born in 2000, and a son born in 2004. The parties agreed to share joint legal custody of the children and, during trial, asked the court to incorporate their parenting plan into the court's decision. The parties' daughter resided with the plaintiff, and the parties' son shared time with both parents by staying with each parent alternating weeks. The parties agreed that the children have attended and may continue to attend private schools and that the parties would pay these expenses from the assets that they had accumulated for the children. The parties also agreed, and the court ordered, that the children's postsecondary education expenses would be paid from the funds in certain specified accounts and that the plaintiff would pay any costs remaining after the application of such funds.

         At the time of trial, the plaintiff was fifty-seven years old and generally was healthy. She has a bachelor's degree, as well as a juris doctor and has worked at the Office of the Attorney General since 1986.[2] The plaintiff's biweekly salary was $5968 and her net weekly income after mandatory deductions was $1991. The plaintiff is fully vested in the Connecticut state employee retirement system. The court found that until recently, the plaintiff had withheld funds from her biweekly paycheck for investment in her 457 retirement plan. The plaintiff also has premarital assets and assets inherited from her mother.

         At the time of trial, the defendant was seventy years old. He has a bachelor's degree and retired from the Office of the Attorney General in 2002 or 2003. Prior to his employment with the Office of the Attorney General, the defendant worked for various entities doing accounting and cost analysis. The court found that the defendant was not advancing in his position with the Office of the Attorney General and was working for a difficult supervisor. The parties mutually decided that the defendant would retire, enabling him to provide care to the parties' young children and allowing the plaintiff to continue working.

         The defendant took an early retirement package and elected, irrevocably, the 50 percent option form of reduced retirement income for the plaintiff's benefit.[3]The defendant's current pension payment is $393 per week, and he receives social security income in the amount of $249 per week. The court found the defendant's net income to be $842 per week, based on a gross income of $982 per week.[4] The court declined the plaintiff's request to impute $27, 105 in annual retirement income withdrawals to the defendant from his retirement investment accounts; the court stated, however, that it had considered the availability of funds in the defendant's accounts in structuring its orders. The court found that the defendant had premarital assets and assets inherited from his family and that he had contributed to a deferred compensation plan when he was employed. Finally, the court found that, upon retirement and against the plaintiff's wishes, the defendant rolled over the funds from his state managed retirement fund into a Charles Schwab account that he could manage.

         Prior to the marriage, the plaintiff owned a home in Meriden, and the defendant owned a home in Winsted. In 1995, the plaintiff moved into the Winsted home and thereafter sold her home in Meriden. The parties refinanced the mortgage on the Winsted property using a portion of the proceeds of the sale of the Meriden home and thereafter owned the Winsted property as joint tenants. In January, 2011, the parties purchased the marital residence located in New Hartford. They did not move into that home until November, 2011, as they wanted to make some improvements to the home prior to moving in. In October, 2012, the parties sold the Winsted home.

         In March, 2016, the plaintiff informed the defendant that she was moving out. In May, 2016, the plaintiff purchased a home in Unionville, where she continues to reside. The plaintiff valued the Unionville home at $280, 000. The court found that the majority of funds utilized to acquire this home were premarital and/or inherited funds, that this home was subject to a mortgage of $45, 000, and that the plaintiff had $235, 000 of equity therein. The defendant continues to reside in the New Hartford home. According to the financial affidavits of both parties, the mortgage on the New Hartford property had a principal balance of $162, 000. The court found that the fair market value of the home was $350, 000 and that the parties had $188, 000 in equity in the home.

         In its memorandum of decision dissolving the parties' marriage, the court did not attribute significantly greater fault for the breakdown of the marriage to either party. It ordered the plaintiff to make the monthly payments on the New Hartford mortgage from and after the date of the judgment and to discharge the mortgage encumbering the property within six months from the date of the judgment. The court further ordered that the plaintiff convey to the defendant the sum of $126, 000 from her 457 retirement account. With regard to the plaintiff's pension, the court noted that, pursuant to the plaintiff's Connecticut state employee retirement plan, the plaintiff could not elect a survivor beneficiary of her retirement benefits until she retired and that, if the plaintiff is remarried when she retires, the new spouse would have to consent to the designation of the defendant as the survivor beneficiary. The court entered orders designating the defendant as the alternate payee pursuant to a domestic relations order.[5] The court further ordered that no alimony was payable by one party to the other except as set forth in section G.4 of the dissolution judgment, which governed the distribution of the parties' respective retirement accounts. Pursuant to section G.4 (v) of the dissolution judgment, the defendant was awarded $1 per year in alimony ‘‘modifiable only to enforce the rights called for in this provision.''

         Following the denials of the defendant's postjudgment motion for articulation and motion to reargue, the defendant filed the present appeal.[6]

         I

         The defendant first claims that the court erred by failing to award him more than nominal alimony despite the substantial disparity in the parties' incomes and ability to pay expenses.[7] He contends that the plaintiff's financial affidavit reveals a surplus of income over expenses while the defendant's affidavit reveals a short-fall.[8] Specifically, the defendant points out that the plaintiff's net income, as reflected on her financial affidavit, was $1966 per week and her expenses were $1178 per week, while he had a weekly income of $642 and weekly expenses of $1270. In addition to the disparity in the parties' incomes, the defendant notes that he has been retired for fifteen years and is seventy years of age. He points out that he retired by agreement of the parties, enabling him to care for the parties' children and allowing the plaintiff to focus on her career. Finally, the ...


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