Opinion
No. FA 89-0511090
October 12, 2005
MEMORANDUM OF DECISION RE MOTION TO REOPEN AND MODIFY ALIMONY, POSTJUDGMENT #172 AND MOTION TO TERMINATE ALIMONY, POSTJUDGMENT #173
This matter comes before the court by virtue of a postjudgment motion to open and modify alimony #172, filed by the plaintiff on March 31, 2005 and a motion to terminate alimony #173, filed by the defendant on July 25, 2005. The court conducted a hearing on the motions.
The marriage of the parties was dissolved on September 4, 1992, after a twenty-year marriage. At the time of the dissolution, the parties had three minor children, a fourth having turned eighteen at the time of the trial. The defendant was, and still is, employed at Electric Boat, a division of General Dynamics, and his affidavit at the time of the dissolution reflected a gross weekly income of $570.80. He worked at a second job which paid him an additional $55 to $60 weekly. He also had a stock savings plan with an approximate value accessible to the defendant in the amount of $7,413.82.
The plaintiff had various jobs throughout the marriage, but at the time of the dissolution she was unemployed and was receiving $180 per week which she designated on her financial affidavit as "state assistance." She complained of back injuries and testified that she was unable to work, however, the court in its memorandum of decision found her to be less than credible in many respects with regard to her testimony.
The court ordered the defendant to pay to the plaintiff "the sum of one dollar a year alimony modifiable only after the minor children of the parties reach the age of eighteen or the defendant for some other reason is no longer responsible for the support of the children. The amount of the alimony is based upon the income of the defendant at the present time including both sources of employment . . . and the needs of the defendant with regard to the support of the children." The court went on to write that it "declines to order any property transferred at this time it being the anticipation of the court that the defendant will require all of the funds available in his SSIP to arrange for a larger living quarters and furniture and furnishings, clothing and medical and dental expenses for the three minor children."
The plaintiff appealed the dissolution judgment which was affirmed. Adams v. Adams, 32 Conn.App. 903, 632 A.2d 717 (1993).
The youngest child, Amanda, turned eighteen on May 21, 2004, and the plaintiff filed the motion to open and modify judgment requesting from the court a weekly periodic alimony order as well as an allocation of the defendant's SSIP/pension. The court will address the SSIP first.
The motion indicated SSIP/pension. The SSIP is a stock and savings investment plan which the defendant had at the time of the dissolution. His current financial affidavit indicates a 401K with a value unknown.
"Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified . . . upon a showing of a substantial change in the circumstances of either party . . ." "This section shall not apply to assignments under [General Statutes] § 46b-81, or to any assignment of the estate or a portion thereof of one party to the other . . ." General Statutes § 46b-86(a). This statute deprives the court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81. Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980).
In its memorandum of decision, the court clearly indicated that it was declining to assign or transfer any of the SSIP owned by the defendant to the plaintiff. The court went on to elaborate its reasoning, stating that there was an anticipation that the defendant would require the funds in order to support the four children to whom he was granted custody. This court is without jurisdiction to modify any distribution of property awarded under General Statutes § 46b-81.
The plaintiff's motion also seeks a distribution of the defendant's pension. The court does not have jurisdiction to award any pension distribution to the plaintiff as pension benefits are classified as property pursuant to General Statutes § 46b-81 and thus, nonmodifiable. Krafick v. Krafick, 234 Conn. 783, 793, 663 A.2d 365 (1995).
The plaintiff is also seeking a modification of the alimony order. The judgment indicated that the alimony was modifiable upon the youngest child reaching eighteen or upon a showing that the defendant was no longer supporting the children. Any modification must be based upon a substantial change of circumstances. Borkowski v. Borkowski, 228 Conn. 729, 741-43, 638 A.2d 1060 (1994); Sanchione v. Sanchione, 173 Conn. 397, 408, 378 A.2d 522 (1977); Sardilli v. Sardilli, 16 Conn.App. 114, 119, 546 A.2d 926 (1988). In determining whether to modify the award of alimony, the court is to use the same criteria that are relevant to an initial award of alimony. Borkowski v. Borkowski, 228 Conn. at 736. These factors include the length of the marriage, the causes for dissolution, age, health, station, occupation, amount and sources of income, vocational skills . . . employability, estate and the needs of the parties. See General Statutes § 46b-82.
"To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order." Borkowski v. Borkowski, 228 Conn. at 737-38. The court finds there exists a substantial change in circumstances in that the minor children have all reached the age of majority.
At the time of the dissolution, the plaintiff was receiving some sort of state assistance and indicated that she was unable to be employed based upon various infirmities. She testified that she is now receiving SSI payments from social security based upon her health issues. She has inherited assets from her mother's estate in the approximate amount of $50,000, however, the State of Connecticut has a claim against that inheritance due to her receiving public assistance. (Plaintiff's Exh. 1.)
The defendant continues to be employed by Electric Boat. Although the children are all past the age of majority and the defendant is under no obligation, he continues to support his two youngest children by paying for the college tuition. His financial affidavit indicates he pays approximately $630 per week in college tuition and school expenses.
It has been thirteen years since the date of the dissolution. The plaintiff has taken no steps to obtain any employment and did not provide the court with any medical evidence to indicate that she is unable to be employed at some type of job. The defendant, since the date of dissolution, has continued to fulfill his obligations to his children and to provide a college education for them. The plaintiff is now receiving SSI from social security. The court finds that there are no circumstances to justify that the alimony order is now unjust or unfair. In fact the opposite is true. The defendant supported their children without any assistance from the plaintiff and is now paying $26,000 a year to educate two of the children. Under these circumstances, and considering all of the relevant statutory criteria, it would inequitable for him to continue to be exposed to the obligation to pay alimony to the plaintiff. The defendant is under no continuing duty to support the plaintiff.
The motion to open and modify the judgment is denied. The motion to terminate alimony is granted.