Connecticut Trial Court Official Decisions


KILMURRAY v. KILMURRAY, No. FA95 0148718 S (Aug. 9, 1996) BARBARA KILMURRAY vs DANIEL KILMURRAY 1996 Ct. Sup. 5256-FFFFFF No. FA95 0148718 S Connecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford August 9, 1996



The plaintiff’s motion is based on her decision to move to
Greenwich, vacating the marital residence located in Weston.
The defendant had vacated the marital home in December,
1995. On December 18, 1995 the parties made an agreement
concerning the children, and the payment of expenses. The
defendant agreed to pay directly to the creditor.

“1. Mortgage
2. RE Taxes
3. Home Fuel
4. Home Electricity
5. Home Propane
6. Water
7. Telephone (maximum $200 per month) and
car phone (maximum $50 per month)
8. Trash
9. Cable
10. Gas/Oil and Repairs to Van and Lexus
11. Auto Insurance
12. Home Insurance
13. Medical Insurance (for family)
14. Uninsured Medical and Dental
15. Household Expenses for Repairs
16. AuPair
17. Cleaning Lady
18. Alarm Fence
19. Landscaping/Snow
20. Dry Cleaning
21. Rental Home
22. Children’s Tutor/Lessons
23. Pool Service CT Page 5256-GGGGGG
24. Children’s Reasonable Clothing”

The defendant agreed to pay $2,250 per month as child
support. They further agreed that $150,000 would be
withdrawn from the defendant’s brokerage account and shared
equally. Each party would utilize $8,500 for litigation
costs. The parties agreed to consider the withdrawal as a
lump sum distribution. The defendant agreed to pay vacation
expenses for the plaintiff and children not to exceed
$10,000 annually.

In January, 1996 the marital home was listed for sale.
After six months of exposure with many showings the
property remains unsold.

The plaintiff discussed her plan to move with the
defendant over several months. By letter dated March 9,
1996 the defendant advised the plaintiff he was against
moving the children “out of Weston right now” (Plaintiff’s
Exhibit #2). He requested that her move be delayed until
July 1, 1996. The arrangement that has been in place allows
the defendant to have the children overnight during the
week as well as on weekends. Although his main office is in
New York City, he has made arrangements to work from a
Connecticut office at least once weekly. The defendant took
a short term rental but then committed himself to a house
rental in Weston for a year, commencing July 1, 1996 by
lease dated June 9, 1996 (Plaintiff’s Exhibit #10). By
motion dated June 3, 1996 the defendant seeks an order
enjoining the plaintiff from relocating the residence of
the children outside the marital residence located in
Weston and to enjoin her from changing the school enrollment
of the children from their current schools.

The first difficulty with the defendant’s request is its
failure to recognize that the Weston property previously
occupied by the family is no longer occupied by either the
plaintiff or the defendant. The court finds that it is not
in the best interests of the parties’ children to be
anchored to an arbitrary location. The defendant was well
aware of the plaintiff’s plans yet delayed filing his
present motion until June. Dr. Kruger, Ph.D who has been
seeing the children suggested to the plaintiff that she
delay her move, which he was aware of since the winter,
until the end of the school year. He also discussed
creating an alternate visitation schedule if the plaintiff
did move to Greenwich. The defendant has failed to prove
that the children will be adversely affected by moving to
Greenwich. He has created his own hardship by renting a
house in Weston, rather than in the Greenwich area. CT Page
5256-HHHHHH The court also notes that the family moved to
Weston from New Jersey in the summer of 1993.

The references to the plaintiff’s boyfriend residing in
Greenwich the court finds to be a red herring. How the
plaintiff handles her relationship with her boyfriend will
not be determined by street or town location, but rather
how she allows it to affect the children. The defendant’s
motion to enjoin is denied.

The court finds the joint decision to sell the former
family home, and the creation of a new residence for each
party are changes sufficiently substantial to require
review of the prior orders. The plaintiff’s motion is

The defendant called his branch manager of the 200 Park
Avenue office of Paine Webber to explain that defendant is
compensated solely by commissions. This office had
previously been operated by Kidder, Peabody until January
30, 1995 when Paine Webber bought the business. To induce
the defendant to remain in the office the defendant was
loaned $904,371 without interest with 25% of the loan
forgiven on January 30 of each of the succeeding four years.
The initial $226,093 was forgiven on January 30, 1996,
creating an income tax liability which was anticipated by
withholding over the prior 12 months (cf. Defendant’s
financial affidavit dated 12/1/95, filed 12/18/95). The
witness was candid, cooperative and polite but,
unfortunately, was unable to explain the payroll
bookkeeping involving the defendant’s loan reduction. The
defendant acknowledged that his December affidavit was
inaccurate. The court observes that the note provides for
forgiveness of 1/48 of the debt for each month of service
should the employer terminate the defendant’s employment
except for cause.

Without considering the forgiven debt, the defendant has,
through June 15, 1996, gross earnings of $400,656. Further,
the court is not satisfied with the defendant’s explanation
as to why $23,367 is being deducted monthly as “loan”
without clarifying where the money is held. The defendant
is due to receive a second forgiveness next January. The
1996 forgiveness, net of taxes, is income to the defendant,
in the opinion of this court.

The court finds that the plaintiff is entitled to a
modification of the pendente orders.

1. The defendant shall continue to pay the following
expenses to the creditor for 4 Lyons Plains Road: CT Page

1. Mortgage Installments
2. Real Estate Taxes
3. Utilities and Heat
4. AuPair
5. Homeowner’s Insurance
6. Medical Insurance for the family
7. Uninsured medical deductibles and bill balances for
medical expenses submitted and allowed by his, carrier.
8. Yard Maintenance and Snow Removal
9. Auto Insurance

2. The defendant shall continue to pay $2,250 per month to
the plaintiff as child support.

3. The exclusive use of the family home order is vacated.
The defendant is ordered to protect the property’s insurance
or he shall pay any surcharge if the property is to be
insured as a vacant house.

4. The defendant shall pay to the plaintiff as periodic
temporary alimony the sum of $15,000 monthly. The plaintiff
shall be responsible for her living expenses not allocated
to the, defendant in Order #1 supra. First payment shall be
on September 5 and on the fifth day of each month

5. The defendant shall pay the sum of $10,000 to the
plaintiff on or before September 1, as vacation allowance
for the ensuing 12 months solely for family vacations with
the children.

6. The children’s custody and visitation arrangements, if
not agreed between the parties are referred to the Family
Relations Office for assistance but this order is not
intended to preclude private counsellors.

7. The plaintiff is ordered to cooperate with the
defendant and the holder of the mortgage on the Weston home
to permit amendment to same as negotiated by the defendant
to avoid the balloon payment.

So ordered.