Opinion
No. FV-96-0071815
April 19, 2004
RE ARTICULATION
Before the court are four motions. The first is a motion to modify the amount of alimony ordered by the court Pickett, J. on January 5, 1998 filed by the defendant, the former Pamela S. Berry, now known as Patricia S. Southworth (hereinafter "Ms. Southworth"). Specifically, she requests that the court order the plaintiff Robert C. Berry (hereinafter "Mr. Berry") to increase his $1.00 per year alimony payment to $1,000 per week or $52,000 per year pursuant to General Statutes § 46b-86, based on a substantial change in circumstances. The second is Ms. Southworth's motion for attorneys fees pursuant to General Statutes § 46b-62. The third is the plaintiff, Robert Berry's motion to modify the alimony order and the third is his motion for attorneys fees.
The court heard all four motions on October 24, 2003 and November 13, 2003. The defendant filed a post-trial brief on November 20, 2003 and the plaintiff filed a post-trial brief on November 26, 2003. This court denied all four motions giving reasons therefore and the defendant appealed. The court filed this articulation in accordance with Practice Book 64-1.
The court finds the following facts. Both Ms. Southworth and Mr. Berry's circumstances have changed since the dissolution of their marriage. In 2001, Ms. Southworth lost the job she had at the time of the divorce and in October 2002 she was diagnosed with leukemia. She was unable to work due to debilitating leukemia treatment and risk of infection. Ms. Southworth's financial affidavits show she had weekly income of $962.00 at the time of the divorce and she is now receiving social security disability income in the amount of $388.00, reducing her income by $574.00. She paid off her mortgage using money from a joint account with her parents, reducing her expenses by $467. While she claims the money to repay her mortgage was a loan there is no objective evidence of a loan, having been made and the court finds that the money was a gift. (Transcript October 24, 2003 Page 47-48.) The elimination of the mortgage payment compensated for all but $107.00 of her lost income.
Ms. Southworth may resume her employment soon. She is now in remission. (Transcript October 24, 2003 Pages 16-17.) It is possible that she could return to work in 2004. (Transcript October 24, 2003 Pages 77-78.) Her former employer is hiring and she was called and asked to go in and discuss a job. (Transcript October 24, 2004 Pages 77-79.)
Ms. Southworth is co-habitating with another person with whom she shares expenses equally. Since March of 2001 she has cohabitated with Mr. Guy Gignac. (Transcript October 24, 2003 Pages 44-46, 80-83). She and Mr. Gignac share equally living and leisure expenses and he performs customary home maintenance chores for which Ms. Southworth does not have to pay. (Transcript October 24, 2003, Pages 23-27, 45, 81-83.)
Ms. Southworth has received and still retains substantial financial resources in addition to those awarded to her in the divorce and the appreciation of those assets. Although she was laid off in October 2001, Ms. Southworth was retained and received her regular salary through December 2001. (Transcript October 24, 2003 Page 61.) In addition she received a severance payment in the amount of $103,418 net of taxes on or about March 14, 2002. (Transcript October 24, 2003 Pages 63-64.) She was also paid a bonus in 2002 for her 2001 performance, the amount of which she testified could not recall. (Transcript, October 24, 2003 Page 62.) She received an $11,000 retroactive social security disability payment in May of 2003 and a $6,447 tax refund in 2003. (Transcript October 24, 2003 Pages 66-67.) On October 24, 2003 she had $10,000 in her checking account. (Transcript November 13, 2003 Page 68.) Although she has been unemployed since October of 2001, she has in excess of $127,437.02 in cash at her disposal on deposit in investment accounts, which amount is in addition to her 401K, IRA and other retirement accounts. (Transcript October 24, 2003 Pages 63-69, November 13, 2003 Pages 60-64.)
The court finds Ms. Southworth's claim of financial need unpersuasive in light of those facts and the further fact that she has not only saved her severance payment, but that her savings and retirement account balances have increased markedly since her divorce. (Transcript October 24, 2003 Pages 655-66, November 13, 2003 Pages 60-65; see also Defendant's Affidavit #140.) Her credibility is further undermined by the fact that she knowingly concealed, through mischaracterization, her disposable assets. (Transcript October 24, 2003 Pages 85-86, November 13, 2003 Pages 60-65.) In addition, she did not report the money she has in her bank account on her financial affidavit, but instead listed her bank account balance as "zero" when it was actually $10,000. Ms. Southworth includes on her financial affidavit as expenses, repairs which were considered and provided for in the dissolution proceeding. (Transcript November 14, 2003 Page 68.) Ms. Southworth could, but simply prefers not to, use the more than $127,000 in her investment account to support herself (Transcript, October 24, 2003, Pages 63-69, November 13, 2003 Pages 60-64.) In light of the fact that Ms. Southworth and Mr. Gignac split all other joint expenses equally, the court finds incredulous Ms. Southworth's claims that Mr. Gignac does not contribute financially to the household and that she is supporting Mr. Gignac, especially since he was employed and she was ill and unemployed. (Transcript October 24, 2003 Pages 63-69, 72-76 and November 13, 2004 Pages 60-64.) Finally, Ms. Southworth introduced a letter from her doctor, prepared in support of the motion for an upward modification, in which her doctor states that she is concerned about her finances. On cross-examination; however, Ms. Southworth admitted on cross-examination that the doctor does not know her financial situation, that she has more than one million dollars in assets, or that she is cohabitating with a man who is gainfully employed. (Transcript October 24, 2003 Page 76.) The doctor's statement was made by Ms. Southworth, and simply repeated by the doctor to persuade the court of its truth.
Ms. Southworth acquired a lake-front second home on Marsh Pond Road abutting Bantam Lake in Morris, Connecticut since her divorce. She owns the home as tenants in common with the man who resides in her primary residence, Guy Gignac. (Transcript October 23, 2003 Pages 50-53, November 13, 2004 Pages 69-71.)
Mr. Berry is seeking a termination of the alimony award on the basis that Ms. Southworth is cohabitating and that, he has remarried and fathered two children, he does not have the financial means to pay alimony.
Court retains continuing jurisdiction to modify final orders for periodic payment of alimony, subject to proof of certain statutory conditions. General Statutes §§ 46b-56, 46b-86. Fiddelman v. Redmon, 37 Conn. App. 397, 656 A.2d 234 (1995). "General Statutes § 46b-86(a) sets forth the statutory guidelines for deciding motions any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . altered or modified . . . upon a showing of a substantial change in the circumstances of either party." This statute has been interpreted to require a finding of a substantial change in circumstances that was not within the contemplation of the parties at the time of the original alimony decree. A party seeking a modification of a prior periodic alimony award 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. (Internal citations and quotation marks omitted.) LaBow v. LaBow, 13 Conn. App. 330, 344-45, 537 A.2d 157, 166 (1988); Kelepecz v. Kelepecz, 187 Conn. 537, 447 A.2d 8 (1982); Jaser v. Jaser, 37 Conn. App. 194, 204, 655 A.2d 790, 796 (1995); Shearn v. Shearn, 50 Conn. App. 225, 717 A.2d 793 (1998).
"Unless and to the extent that the decree precludes modification, any . . . final order for the periodic payment of permanent alimony . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . ." General Statutes § 46b-86(a).
Proceeding to modify alimony and child support payments may be premised upon showing of substantial change in circumstances of either party to original decree. Hardisty v. Hardisty, 183 Conn. 253, 439 A.2d 307 (1981). The ["party seeking modification must clearly and definitely show individual facts and circumstances which have substantially changed." McGuinness v. McGuinness, 185 Conn. 7, 440 A.2d 804 (1981). Our Supreme Court has said that "[t]o establish the need for an increase or continuation of alimony when the recipient's health has substantially deteriorated, she need only show that she is unable to meet her medical expenses and that the payer is amply able to pay the increased alimony." McGuinness v. McGuinness, supra; Serby v. Serby, supra. Illness alone does not suffice to warrant a modification, the illness must render the movant in need of a modification. Wanatowicz v. Wanatowicz, 12 Conn. App. 165, 33 A.2 239 (1987); Cummock v. Cummock, 188 Conn. 30, 34-45, 448 A.2d 204 (1984-1982); Benson v. Benson, 87 Conn. 380, 382, 446 A.2d 796 (1982).
A loss of employment does not necessarily constitute a substantial change in circumstances sufficient to warrant modification of financial orders. Wilkens v. Wilkens, 10 Conn. App. 576, 523 A.2d 1371 (1987). A party relying on a loss of employment must also prove that other employment is unavailable. CT Page 5610 Logan v. Logan, 13 Conn. App. 298-535, A.2d 1332 (1988). A substantial change in circumstances does not necessarily warrant a modification. Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977); Bronson v. Bronson, 1 Conn. App. 337, 471 A.2d 977 (1984). Such a change in circumstances must justify a reduction in order for the court to modify the award. Bronson v. Bronson, 1 Conn. App. 337, 471 A.2d 977 (1984). In addition to showing that there has been a substantial change in financial circumstances, the moving party must also prove that modification is warranted taking into consideration the parties' relative overall circumstances as compared to the circumstances existing at the time of the original divorce decree. Gay v. Gay, 70 Conn. App. 772, 800 A.2d 1231, 1238 (2003), citing 2AA Am.Jur.2d, Divorce and Separation § 826 (1998). Shearn v. Shearn, 50 Conn. App. 225, 717 A.2d 793 (1998).
Parties may not re-litigate issues previously decided by the court and accordingly, preclude the court from considering the appreciation of assets acquired by Ms. Southworth prior to, or distributed to her pursuant to, the divorce decree. In determining whether there has been a substantial change in circumstances. Gay v. Gay, 70 Conn. App. 772, 783 (2003).
Mr. Berry's financial position has also changed; his position, however, has changed primarily due to his remarriage and the expense of supporting his new family. The remarriage of the payer is not a basis for reducing an alimony order. Day v. Day, 11 Conn. Sup. 444 (1942); Heard v. Heard, 116 Conn. 632, 166 A. 67 (1933).
Ms. Southworth has greater discretionary financial resources than Mr. Berry, even without counting the appreciation of property awarded to her in the divorce decree. Both parties have health issues. Ms. Southworth's health issues appear to be resolving and she expects to be able to resume highly gainful employment. While her leukemia has been treated and she appears to be in remission, reoccurrence is possible although the prospects of remission are speculative. Defendant's exhibits 1 and 2. Even if she is not in remission, she has ample resources to support herself in the style to which she became accustomed during the marriage without supplementation from Mr. Berry at the present time.
Similarly, Mr. Berry claims that the alimony award should be terminated because he is remarried, has two young children and has health issues. Financial hardships due to remarriage do not warrant modification of financial orders. Riccio v. Riccio, 15c Conn. 317, 216 A.2d 431 (1966). Mr. Berry has been able to support his new family and make provision for his retirement and his children's education, albeit with the financial assistance of his mother-in-law. Further, there was no credible evidence that Mr. Berry's physical condition impaired or impeded his ability to earn income and pay alimony.
Our alimony statute does not recognize an absolute right to alimony, General Statutes § 46b-82; Thomas v. Thomas, 159 Conn. 477, 487, 271 A.2d 42 (1970). "Awards of financial settlement ancillary to a marital dissolution rest in the sound discretion of the trial court." (Citation omitted.) Although the court is required to consider the statutory criteria of length of marriage, causes for dissolution, the age, health, station in life, occupation, amount and sources of income, assets and opportunity for future acquisitions of assets of each of the parties (citation omitted), no single criterion is preferred over all the others. In weighing the factors in a given case, the court is not required to give equal weight to each of the specified items. Nevertheless, it is rather obvious that in making financial determinations, the financial circumstances, both actual and potential, are entitled to great weight. Valente v. Valente, 180 Conn. 528, 530 (1980); Watson v. Watson, 221 Conn. 698, 710 (1992).
The court finds that while there has been a substantial change in the circumstances of both parties, considering the needs and financial resources of each of the parties, taking into consideration the cause of the divorce, the age, health, station, occupation, employability and amount and sources of income, that the circumstances presently existing do not warrant a modification of the alimony order at this time.
In determining whether to order one party to pay the legal fees of another, the court must consider each party's ability to pay and maintain the integrity of previous financial awards. Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992). General Statutes § 46b-62 empowers the court to award attorneys fees in accordance with the parties' ability to pay and the statutory criteria for an alimony award. Vandal v. Vandal, 31 Conn. App. 561, 568, CT Page 5612 626 A.2d 784 (1983); Howat v. Howat, 2 Conn. App. 400, 472 A.2d 799 (1984). Given Ms. Southworth's substantial liquidity and Mr. Berry's substantial income, as well as the prior orders which created economic parity among the parties, the court orders each party to pay their own legal fees.
BY THE COURT,
Vanessa L. Bryant