Opinion
NNHFA094039390S
09-11-2017
Susan Zanker v. Robert Zanker
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Karen Goodrow, J.
I
Procedural History
This action for dissolution of marriage went to judgment on January 24, 2011; the agreement of the parties was incorporated into the judgment (#113/113.1). Before the Court is Defendant's Motion to Effectuate Judgment (#119/120) filed June 20, 2016, and Defendant's Amended Motion to Modify Alimony and Life Insurance (#127) filed February 7, 2017. An evidentiary hearing on the motions was held over the course of the following days: March 24, 2017, May 8, 2017 and June 27, 2017. The parties were present and represented by counsel at the hearing, and each presented evidence and testimony.
The motion amends the Defendant's Motion to Modify Alimony and Life Insurance (#117/118) filed June 20, 2016.
The parties stipulated at the hearing that child support should be modified to $375 per week from defendant/father to plaintiff/mother, consistent with the Child Support Guidelines.
Facts
Based upon a careful consideration of all of the evidence, the stipulations of the parties, and a review of the file and record, having afforded appropriate weight and credibility to the testimony of the witnesses and to the evidence, the court finds the following facts by a preponderance of the evidence:
The dissolution was granted and judgment entered on January 24, 2011. The dissolution Court (Abery-Whetstone, J.) incorporated the parties' Separation Agreement into the judgment. The parties' agreement included, among other things, " the support and maintenance of the wife." Paragraph five of the agreement sets forth the defendant/husband's alimony obligation to the plaintiff/wife. " Commencing February 1, 2011 and on the first of each month thereafter the Husband shall pay periodic alimony to the Wife in the sum of One Thousand Four Hundred Dollars ($1,400.00) per week or Six Thousand Sixty-Six Dollars and 67/100 ($6,066.67) per month. Alimony shall be paid on the first of each month by direct deposit or electronic funds transfer. In the event the Wife obtains employment from which she will earn Fifty-Five Thousand Dollars ($55,000) on an annual basis, alimony shall be reduce to One Thousand Two Hundred Dollars ($1,200.00) per week. The Wife shall advise the Husband within one (1) week of obtaining such employment, and the reduction shall commence when she starts the increased employment. On February 1, 2016, the alimony shall be reduced to One Thousand Dollars ($1,000.00) per week. Alimony shall terminate upon the first to happen of the following events: (1) death of the Wife; (2) death of the Husband; (3) the Wife's remarriage; or (4) January 24, 2026. Alimony shall be taxable income to the Wife, and deductible to the Husband. Alimony shall be subject to modification in accordance with Section 46b-86 of the Connecticut General Statutes." The defendant's present alimony obligation is $1,000 per week.
Pursuant to the judgment, the plaintiff received alimony of $72,800 per year from February 1, 2011 until February 1, 2016, at which time the alimony was reduced to $52,000 per year. Additionally, the alimony was to be reduced to $62,400 yearly if the plaintiff earned an annual income of $55,000. The agreement and judgment do not automatically reduce the present $52,000 yearly alimony, depending upon the plaintiff's income. However, the alimony award is subject to modification according with C.G.S. 46b-86.
Neither the agreement nor the judgment articulates the purpose of the alimony award. The parties dispute the purpose of alimony. The court finds that the purpose of the alimony award was to afford the plaintiff a period of financial support in order for the plaintiff to establish a career and financial independence, and also to recognize her contribution to the marriage as the main caregiver for the children during the marriage, and to recognize the fact that the plaintiff was unable to pursue her career or post-graduate studies.
The plaintiff credibly testified that she was unable to attend graduate school because she was supporting the defendant while he attended medical school. Also, the plaintiff was the main care-giver for the parties' two sons, both of whom have medical and mental health needs.
The agreement also provides that the Husband would provide life insurance, in relevant part, as follows: " The husband shall maintain life insurance in effect on his life naming the Wife as beneficiary thereof in a face amount of not less than Eight Hundred Twenty-Five Thousand Dollars ($825,000) as long as he has an obligation to pay alimony, or until the younger child has reached the age of twenty-three (23) years, whichever shall last occur. The Husband acknowledges that such insurance is presently in effect."
At the time of the dissolution, the plaintiff's net weekly income was $590, her weekly expenses and liabilities were $2,754, the total cash value of assets was $162,549, and her total liabilities were $27,066. The plaintiff's present net weekly income is $2,140, her total weekly expenses and liabilities are $2,993, the total cash value of assets is $471,608, and her total liabilities are $33,058. The plaintiff earns a gross yearly salary of $69,500 for the school year (end of August through sometime in June).
The plaintiff's financial affidavit at the time of dissolution is pleading 112.10; the defendant's financial affidavit is pleading 112.20.
At the time of the dissolution, the defendant's net weekly income was $3,221, his weekly expenses and liabilities were $3,337, the total cash value of assets was $478,744, and his total liabilities were $197,360. The defendant's present net weekly income is $3,759.38, his total weekly expenses and liabilities are $3,431.54, his total cash value of assets is $466,776.07, and his total liabilities are $113,682.12. The defendant earned a salary of approximately $307,000 in 2016, which included a base rate and additional income. His present gross annual salary (base rate) is approximately $255,166.33, plus performance incentive (calculated quarterly) and bonus payments. His performance incentive in February 2017 was 11.8% of his base salary of $255,166.33, or $30,109.63. The defendant's performance incentive in February 2016 was 11.8% of his base salary of $245,261.95, or $28,940.91. The bonus payments are not guaranteed and are based on an annual review. Defendant also has the potential to receive additional salary in shift differentials, which are not guaranteed, and depend upon the shift worked and over-time periods. He has also earned relatively nominal income from work with the federal government.
In April and May 2017, the defendant's mother gave him cash gifts totaling approximately $30,000.
In April 2014, the plaintiff's parents moved in with the plaintiff at her home at 301 Redstone Drive in Cheshire. Also living in the home are the parties' two sons, ages 22 and 15. The plaintiff's mother moved to a care facility in May 2016; the plaintiff's father remains living with the plaintiff. The plaintiff has not been paid to care for her parents; she credibly testified that she felt it was her obligation to take care of her parents. The plaintiff did not pursue full-time employment because she felt that her obligations to her parents prevented her from doing so.
The parties' 22-year old son also lives with the plaintiff, and does not contribute to expenses. The plaintiff pays the son's expenses, including those associated with the Honda vehicle used by the son.
The plaintiff's father suffers from age-related memory loss and depression, and no longer drives. However, there was no evidence that Dr. Cassin is incapable of caring for himself.
Since the plaintiff's parents moved in with her, they have consistently provided her with financial assistance. The plaintiff's parents were, for a period, paying one-half of the monthly mortgage payment, as well as providing the plaintiff with additional funds. At some point in time, the one-half payment towards the mortgage was reduced to one-third of the mortgage. The plaintiff calculated that one-third was a fair amount for her parents to contribute because they occupied one-third of the square footage of the house.
The plaintiff testified to various financial contributions made by her parents, which contributions her father continued to make upon her mother's move to a care facility.
In addition, the plaintiff's parents were paying consistently towards the plaintiff's household expenses. For instance, in 2014 and 2015, the plaintiff's parents were paying half of the plaintiff's mortgage, electric, water and internet bills, along with a portion of the plaintiff's car insurance as well as a portion of the expenses for lawn, garden, snow removal, security alarm and housecleaning. Plaintiff's father also pays one-third of the groceries purchased for plaintiff, the parties' two sons, and the plaintiff's father.
The contributions to the mortgage ended in July 2016, however, plaintiff's father still pays one-third of the other expenses. In addition to funds paid by her parents, in 2014, the plaintiff's father purchased an Acura vehicle in the amount of $37,016.27 for the plaintiff. Additionally, in October and November 2015, the plaintiff's parents gave her two cash gifts totaling $25,000 in order for the plaintiff to refurbish one of the bathrooms in the home.
Although the plaintiff testified that she bought the Acura together with her father, and that her father initially paid for half of the taxes on the vehicle, the court finds that the plaintiff's father bought the vehicle for the plaintiff for her use solely, including transportation of her parents.
The plaintiff's parents also contributed in excess of $250,000 to remodel the first floor of the plaintiff's home to accommodate their living arrangement. The fair market value of the property is $520,000 and it is owned solely by the plaintiff. The plaintiff did not charge her parents for rent, and does not now charge her father to live at the home, in part because her father paid for the remodeling. The Court did not find credible the plaintiff's testimony that she never charged her parents rent because her parents have significant expenses of their own. Further, the Court did not find credible the plaintiff's testimony that her financial needs have not been altered by her parents residing with her at the home.
The plaintiff's father, Dr. Cassin, was aware that the defendant was requesting a reduction in his alimony obligation due to the fact that Dr. Cassin was contributing towards the plaintiff's expenses. The court does not credit Dr. Cassin's testimony that the reason he stopped contributing to the plaintiff's mortgage was that the remodeling was finally completed in 2016, and he could move into the new bedroom. The plaintiff herself testified that prior to her mother being moved to a care facility, although the addition was not yet completed, her parents were able to sleep in their new bedroom. The Court finds more credible that the reason that Dr. Cassin stopped contributing toward the mortgage in July 2016 was because the defendant was pursuing his request to reduce alimony.
The defendant's live-in girlfriend, Caroline Tyler Moremile, testified credibly that she does not make regular contributions to the expenses of the defendant's household. She has two sons, one in college and one is a senior in high school. She receives child support which she uses to take care of the needs of her youngest son. The youngest son resides in the defendant's home. Ms. Moremile does not work outside of the home, and was last employed as a small business owner. An accident caused her to dissolve her business in May 2016, and she has been unemployed since that time. The defendant contributes to the financial needs of Ms. Moremile.
There has been a substantial change in circumstances since the judgment in that the plaintiff's income has substantially increased, and she has received substantial financial contributions from her parents. The plaintiff is now employed in a full-time position as a middle school nurse. She contributes 5-6% of her gross salary to a retirement plan, which is matched up to 3% by her employer. The increase in the plaintiff's income up to the $55,000 safe harbor was anticipated at the time of the dissolution; the alimony award was structured to anticipate that the plaintiff's income would increase over time. However, the plaintiff's salary has substantially increased beyond the $55,000 safe harbor, which increase establishes a substantial change in circumstances. Additionally, the plaintiff's financial needs have been altered by the living arrangements with her parents. The Court shall set forth additional facts as is necessary to its analysis.
III. Discussion
A. Defendant's Motion to Effectuate Judgment (#119/120)
In the defendant's motion, he requests that this court order the plaintiff to refinance the mortgage on the former marital home in order to " effectuate the judgment." The motion is denied because the judgment does not include an order that the plaintiff refinance the mortgage. The defendant argues that the language from the parties' agreement, which was incorporated into the judgment by the dissolution court, requires refinance. This Court does not agree. The relevant portion of the agreement states: " The Husband shall convey to the Wife by quitclaim deed his right, title and interest in the marital home located at 301 Redstone Drive, Cheshire, Connecticut. The wife shall assume responsibility for the mortgage, equity line, taxes, insurance and all other expenses with respect to said property and shall indemnify and hold the Husband harmless with respect thereto. The Wife shall have sole access to the equity line." The language of the agreement does not require the plaintiff to refinance the property, nor did the dissolution court order as part of the judgment a requirement to refinance. The defendant in his brief invites this Court to interpret the judgment to require refinancing of the former marital home, which this Court declines to do. The language of the judgment clearly does not impose upon the plaintiff a requirement to refinance. Therefore, the Motion to Effectuate Judgment is denied.
B. Defendant's Amended Motion to Modify Alimony and Life Insurance (#127)
" It is well established that when a party, pursuant to [section] 46b-86, seeks [postjudgment] modification of a dissolution decree . . . he or she must demonstrate that a substantial change in circumstances has arisen subsequent to the entry of the [decree]." Borkowski v. Borkowski, 228 Conn. 729, 736, 638 A.2d 1060 (1994). " Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony . . . [is] relevant to the question of modification." (Internal quotation marks omitted.) Id., at 737. " [A]n increase in the supporting spouse's income, standing alone, ordinarily will not justify the granting of a motion to modify an alimony award . . . [C]ourts have begun to limit the duration of alimony awards in order to encourage the receiving spouse to become self-sufficient. Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency." (Internal quotation marks omitted.) Dan v. Dan, 315 Conn. 1, 4, 105 A.3d 118 (2014), citing Wood v. Wood, 165 Conn. 777, 784, 345 A.2d 5 (1974), and Roach v. Roach, 20 Conn.App. 500, 506, 568 A.2d 1037 (1990).
" There is little, if any, legal or logical support, however, for the proposition that a legitimate purpose of alimony is to allow the supported spouse's standard of living to match the supporting spouse's standard of living after the divorce, when the supported spouse is no longer contributing to the supporting spouse's income earning efforts . . . [W]hen the sole change in circumstances is an increase in the income of the supporting spouse, and when the initial award was and continues to be sufficient to fulfill the intended purpose of that award, we can conceive of no reason why the supported spouse, whose marriage to the supporting spouse has ended and who no longer contributes anything to the supporting spouse's income earning efforts, should be entitled to share in an improved standard of living that is solely the result of the supporting spouse's efforts." Dan v. Dan, 315 Conn. at 5.
Pursuant to C.G.S. 46b-86(b), the Court has the authority to modify the judgment and suspend, reduce or terminate alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the Court finds should result in such modification because the living arrangements cause such a change of circumstances as to alter the financial needs of that party. The basis for the Court's finding that a substantial change in circumstances exists is the fact that the plaintiff has had a substantial increase in her income, and that she has received substantial financial support from her living arrangements with her parents such that her financial needs have been altered. " [C]ircumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it." Berger v. Finkel, 161 Conn.App. 416, 128 A.3d 508 (2015) (internal citations and quotations omitted).
The Court has considered the statutory factors and the relevant law, and concludes that a reduction from the present alimony award of $1,000 per week to $600 per week is fair and equitable. The Court has considered the defendant's request for retroactivity, however, the request is denied based on equitable considerations.
III. Orders
1. Defendant's Motion to Effectuate Judgment (#119/120) is denied.
2. Defendant's Motion to Modify Alimony and Life Insurance (#127) is granted.
3. Alimony shall be reduced to $600 per week.
4. Defendant's request for retroactivity is denied.
5. By agreement of counsel, the parties shall seek to reach an agreement regarding an appropriate modification of the life insurance order in the judgment. In the event that agreement is not reached, counsel shall contact the Caseflow Coordinator to schedule a hearing regarding same.
6. All other orders from the dissolution judgment shall remain in full force and effect.