Opinion
No. FA00 037 84 49 S
May 28, 2003
MEMORANDUM OF DECISION ON MOTION TO MODIFY CHILD SUPPORT AND ALIMONY (MOTION 114) AND MOTION FOR CONTEMPT (MOTION 116)
On May 8, 2003, this court heard evidence concerning the plaintiff husband's April 1, 2003, Post-Judgment Motion to Modify and the defendant wife's April 7, 2003, Post-Judgment Motion for Contempt. Based on evidence introduced at that hearing this court finds the following.
This is the third time in less than one year in which this court has addressed alimony and child support issues. In the present action the plaintiff alleged in relevant part that:
at the time of the dissolution, he was employed, and . . . the Plaintiff received $40,000 per year from his income at his employment, plus an allowance for health care, his car, and a cell phone.
The Plaintiff further represents . . . he is no longer working at that company . . .
Since the time of the entry of the aforementioned orders, the Defendant has increased her work hours and is earning significantly greater sums than she did at the time of the dissolution.
"The Plaintiff failed to make the [alimony] payment due April 1, 2003 . . .
"The Plaintiff failed to pay child support for the week of March 14, 2003 . . .
"By letter dated April 1, 2003, Plaintiff's counsel advised "there is no longer medical or dental insurance available." Notwithstanding requests, Plaintiff's counsel has failed to provide additional information relative to the status of Plaintiff's insurance available through employment . . . CT Page 7072-d
On information and belief the Plaintiff has maintained and paid, through his former company, The Mark Yurkiw Group, insurance for the benefit of the minor child.
Although unemployed when the dissolution trial began, during the evidentiary hearing the plaintiff secured employment in his field of expertise, creative advertising. Since the date of this court's judgment, the plaintiff once again has become unemployed. He receives unemployment benefits. Since his termination, the plaintiff has made sporadic efforts to secure a new position. The defendant has been more successful than her former husband. Since the dissolution hearing began, her income more than doubled. Additionally, the defendant receives income from rental properties that were joint marital assets.
This is the second time in less than one year in which the plaintiff has lost his job. Each time he worked at his position for approximately one month. Each time the basis for his termination was a lack of work.
In this court's Memorandum of Decision regarding the underlying dissolution, this court ordered that the parties immediately sell the marital property located in Westport. That property contained two separate rental units. As a result of the defendant's appeal, that order has been stayed. Nevertheless, the defendant has the use of the rental income during the pendency of that appeal. In her financial affidavit the defendant has undervalued the rental income while overstating the expenses associated with those properties.
The statutory prerequisites for modification of alimony and child support are clear. They are the same as were enumerated when this court addressed the plaintiff's earlier motion to modify. Simply stated, there must be a substantial change in circumstances. The plaintiff "must demonstrate that continued operation of the original order would be unfair or improper." Harlan v. Harlan, 5 Conn. App. 355, 357, 496 A.2d 129 (1985).
Furthermore, "a party seeking modification of financial orders incident to a marital dissolution judgment must clearly and definitely establish an uncontemplated substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper. Gleason v. Gleason, 16 Conn. App. 134, 136, 546 A.2d 966 (1988) (citations omitted). Such an uncontemplated substantial change must have occurred after the date of the original order. Gleason, 16 Conn. App. at 137. CT Page 7072-b
The plaintiff has established that there is a substantial change in circumstances. The plaintiff has become unemployed for the second time in less than a year. This constitutes a change in circumstances. That is not, however, the end of the inquiry. That change must legally warrant a modification of existing financial orders. Once again this court must consider, among other factors, the last set of financial orders, the parties' earning capacity, the degree to which the plaintiff's continued state of unemployment was voluntary and the lifestyle maintained by each litigant.
In the present case, earning capacity remains the critical factor. The plaintiff is intentionally under-employed. Most importantly, he has restricted his job search to the New York metropolitan area, selectively pursing career goals and thereby significantly restricting his ability to secure a new position. This court relies upon the fact that the defendant secured two positions during the past year that could have generated $40,000 per year.
Ironically one of the positions the plaintiff sought recently involved filming endangered sites. These locations are not in the New York Metropolitan area.
Conversely, the defendant has more than doubled her salary while retaining the rental income from the former joint marital asset. Although the defendant testified at the dissolution trial that she was making every effort to reduce spending, between the date of that hearing and this court's judgment, the defendant purchased a $27,000 modified Land Rover.
It is the opinion of the court that the plaintiff has an earning capacity at the present time of at least $40,000. The defendant has a current earning capacity of at least $20,000 per year. Additionally, she receives rental income of at least $17,000 per year.
The Motion to Modify Alimony and Child Support is granted. The plaintiff is now ordered to pay child support in the amount of $125.00 per week. He is also ordered to pay alimony in the amount of $150.00 per week. The plaintiff is further ordered to provide the defendant with a detailed biweekly summary of his efforts to secure employment. These orders are effective June 1, 2003.
Turning to the defendant wife's April 7, 2003, Post-Judgment Motion for Contempt, the defendant has established the existence of three court orders, the court-ordered alimony payments, and the court-ordered child support payments and the court-ordered medical insurance payments. The latter payment, medical insurance, was contingent upon the plaintiff's employment. The defendant failed to establish that this insurance remains available. She did establish, however, that the plaintiff failed to pay CT Page 7072-c court-ordered alimony and child support.
The plaintiff justifies his failure to pay court ordered financial support, arguing that he has no current funds and therefore is excluded from the obligation. He lacked the ability to make that decision. Having filed for relief in the past, the plaintiff was well aware of the modification procedure.
The defendant's motion for contempt is granted. The plaintiff is ordered to pay the previously ordered April and May alimony payment as well as the previously ordered child support payments for the months of April and May. That payment must be made in the amount of $25 per week until the arrearage is paid in full.
Orders shall enter on this motion as herein noted.
JULIA DiCOCCO DEWEY, JUDGE