Karen v. Karen, No. Fa-92-0512539-S (Sep. 27, 1994)

1994 Conn. Super. Ct. 9847
CourtConnecticut Superior Court
DecidedSeptember 27, 1994
DocketNo. FA-92-0512539-S
StatusUnpublished

This text of 1994 Conn. Super. Ct. 9847 (Karen v. Karen, No. Fa-92-0512539-S (Sep. 27, 1994)) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karen v. Karen, No. Fa-92-0512539-S (Sep. 27, 1994), 1994 Conn. Super. Ct. 9847 (Colo. Ct. App. 1994).

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION I. The Dissolution of the Marriage

It is found that all of the allegations of defendant's amended cross complaint have been proven, that the marriage of the parties has broken down irretrievably, and the marriage is ordered dissolved for that reason.

II. The Resolution of Various Preliminary Issues Prior to the Establishment of the Marital Estate

A. Defendant's Interest in a Family Trust.

On October 8, 1981 defendant's father executed a revocable inter vivos trust agreement wherein he named a local bank trustee of his estate and provided that after his death the trustee would pay to his widow so much of the income and principal of his estate as it deemed advisable. A similar provision was made for his children. The trust further provided that the trustee was not obliged to make any payment of income or principal but that the widow should be considered the primary beneficiary of the trust, its purpose being to insure her comfort during her lifetime.

At the present time defendant's mother is alive and well and receives periodic payments from the trustee. Defendant has received $8500 form the trust since the death of her father on April 21, 1982, the last payment in the amount of $1000 being made on November 23, 1988. Plaintiff claims an interest in whatever rights defendant might have in said trust which presently is valued at $460,000. CT Page 9848

During the trial Thomas F. Moriarty, a trust officer at the bank/trustee, testified that defendant's mother was the primary beneficiary and that if any of the children requested payment it would be given consideration "depending on the financial and physical condition of the mother."

After examining the provisions of the trust agreement and reviewing all of the testimony on this issue, this court concludes that the plaintiff has no interest whatsoever in said trust and that it should not be considered part of the marital estate of the parties.

B. Defendant's Interest in Certain Gifts and an Inheritance from Plaintiff's Mother

Plaintiff, an only child, was 40 years old when he married defendant in 1984. About 1990 plaintiff was appointed conservator for his mother who later died on February 13, 1991. A Connecticut succession tax return subsequently filed by plaintiff as administrator of his mother's estate lists various bank accounts held by her in survivorship with her son in the total amount of $384,117.

On August 30, 1991 plaintiff began a series of consultations with John D. Baker of Mechanics Savings Bank relative to the investment of money inherited from his mother. Defendant was present at some of the meetings. There resulted from these conferences the establishment between August and October, 1991 of several investment amounts standing in the name of plaintiff alone or together with defendant. At the present time, as indicated by plaintiff's most current financial affidavits, there exist the following accounts:

Keystone B-1 Plaintiff alone $ 46,288

Keystone B-1 Plaintiff and Defendant $211,428

Van Kampen Bond Plaintiff and Defendant $ 50,828 Fund

The parties separated about February 1, 1992 when defendant left the family home, and plaintiff commenced this action on May 29, 1992. CT Page 9849

At issue is whether any of the above accounts should be considered part of the marital estate of the parties.

Concerning Keystone B-1, standing in plaintiff's name alone, the court notes that the money was inherited by plaintiff less than one year before the parties separated and that at all times the account maintained its separate identity in plaintiff's name alone. It is concluded that said account, with a present balance of $46,288, should not be considered part of the marital estate.

With regard to the joint Keystone B-1 account and the joint Van Kampen Bond Fund, other considerations exist inasmuch as plaintiff here converted inherited property previously standing in his name alone to other property standing in both his and defendant's names. This conversion triggered a pivotal development — the creation of a rebuttable presumption that plaintiff intended to make a gift of that property to the marital estate. The presumption, while not conclusive, can only be overcome by clear, convincing and unmistakable evidence that no gift was intended. See Smith v. Smith, 412 N.E.2d 985 (1980 Illinois) and Carter v. Carter, 419 A.2d 1018, 1022 (Me. 1980).1 See also Valuation and Distribution of MaritalProperty, Ch. 18 "Property subject to Equitable Distribution" by Willard H. DaSilva pp. 67-69. Such evidence is lacking here. To the contrary, the record indicates that plaintiff after the institution of the present action unsuccessfully sought to remove defendant's name from these accounts by forging her signature to a request to their brokerage house that this be done.

This court concludes that each of the latter two joint accounts should be considered part of the marital estate of the parties. The manner in which they are to be distributed will be discussed later.

C. Plaintiff Annuity

When still a teenager plaintiff began investing in an annuity in Sun Life. As near as can be ascertained, payments to this account were all made prior to plaintiff's marriage to defendant. The cash surrender value of this account is $67,969. Plaintiff has made no claim to this annuity on the evidence it is held that it should not be considered part of the marital estate.

D. Plaintiff State of Connecticut Retirement Plan CT Page 9850

Plaintiff financial affidavit lists a retirement plan with the State of Connecticut valued at $9000. The evidence indicates that the bulk of this account accrued prior to plaintiff's marriage to defendant and this item will not be considered part of the marital estate.

E. Plaintiff's Interest in the Family Home

Plaintiff in his most current financial affidavit included as an asset equity of $50,000 in his parents' home, representing a one-half interest. After examining the various deeds pertaining to this parcel and other evidence submitted by the parties, this court concludes that plaintiff in truth is not an owner of the property and that this property should not be considered a part of the marital estate.

F. Various Promissary [Promissory] Notes of Plaintiff

Included among the assets listed on plaintiff's financial affidavit are a note from John Denz and Mark Barber in the amount of $12,000, a note from Michelle Close in the amount of $60,000 which is secured by a mortgage and a note and mortgage on his parents' home in the amount of $40,000.

The "Denz" note represented a loan of $12,000 on January 13, 1992 by plaintiff to defendant's sister's husband and friend. Defendant's mother had previously refused to make the loan. Defendant left the family home shortly thereafter. The loan is in default.

The "Close" note and mortgage represent security for a $60,000 loan made by plaintiff to Mrs. Close and her son on January 30, 1992 on the recommendation of plaintiff's attorney. This note is also in default and on the evidence chances for recovery are slim.

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Related

In Re Marriage of Smith
412 N.E.2d 985 (Appellate Court of Illinois, 1980)
Carter v. Carter
419 A.2d 1018 (Supreme Judicial Court of Maine, 1980)

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Bluebook (online)
1994 Conn. Super. Ct. 9847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karen-v-karen-no-fa-92-0512539-s-sep-27-1994-connsuperct-1994.