Opinion
No. FA 94 01400205
January 26, 2005
MEMORANDUM OF DECISION ON MOTIONS 144 and 151
The plaintiff has filed a Motion For Contempt #151 alleging that the defendant has arbitrarily reduced his court-ordered alimony payment of $4,700.00 per month to $1,060.00 per month since April 2004. (Testimony plaintiff, hereinafter T.) The defendant has filed an order to Show Cause #144 seeking a modification of alimony alleging a substantial change in circumstances. The court finds that the defendant is not in contempt by arbitrarily reducing his alimony payment. There was no willful violation. Section 6.5 of the parties' separation agreement provides: "In the event the husband becomes unemployed or disabled, any modification of the periodic alimony obligation shall be retroactive to the date of said unemployment or disability." In this case the defendant's employment was terminated on January 9, 2004 yet he continued to receive severance pay until April 2004. He also continued to pay the plaintiff alimony in the amount of $4,700 until April 2004. (T. plaintiff, defendant.) The arrearage therefore will be retroactive to the first month of reduction.
Post-Judgment Stipulation dated May 16, 2001.
In reference to the defendant's motion for modification, the court finds that the defendant did establish a substantial change in circumstances warranting a decrease in alimony.
The trial court has the authority to modify its alimony order pursuant to General Statutes § 46b-86, which provides in relevant part that "[u]nless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by [the] court upon a showing of a substantial change in the circumstances of either party . . ." CT Page 1331
Gay v. Gay, 266 Conn. 641, 645 (2003).
The parties were married in 1968. They were divorced in 1996. Both parties are now 62 years of age. (T. plaintiff, defendant.) The defendant husband remarried in April 2000. His wife does not work. At the time of the dissolution, the property was divided with the wife receiving 60% of the assets, specifically the house in Westport, Connecticut subject to a $75,000 lien in favor of the husband and all the personal property in the marital home. She also received alimony, which was subsequently increased in May 2001 to $4,700 per month. The husband retained his 401K plan, his car and the Dreyfus fund. (Separation Agreement incorporated into the Judgment dated March 20, 1996).
The defendant has a bachelor's degree in Accounting and became a CPA in 1973. He has worked consistently in accounting in the New York area. In the last fifteen years he has changed jobs twice. In 2001 he joined the Philips Group as CFO at an annual salary of $185,000, plus a bonus. In 2002 he was earning $195,000 annually plus a bonus. In 2003, he was earning the same salary, plus a bonus. Philips Group terminated the defendant on January 9, 2004. He subsequently moved to Wilmington, North Carolina. The defendant testified that he thought about the move for a long time specifically as it related to the stress of New York and health concerns. He had triple bypass surgery eleven years ago and is currently on medication for high blood pressure.
Since January 2004, the defendant has consistently attempted to find employment. The court finds that he has utilized all available means and resources in said attempts. He testified that the pay scale is lower in North Carolina with only two to three jobs at most paying in the $80,000 to $90,000 range in a position similar to his previous employment. These jobs were unavailable. The defendant further testified that he changed his job search in an attempt to provide consulting services with no success. He is now considering obtaining a realtor's license. He has contacted a realtor concerning job opportunities. He testified that based on information obtained from the realtor his earnings in the first year would approximate $37,000, in the second year approximately $50,000, and, in the fourth plus year between $125,000 to $150,000. Of course, this is pure speculation. Currently, the defendant shows zero gross monthly income on his financial affidavit with other monthly income in the amount of $4,215.00 derived from 401K, interest and social security. As stated previously, the court finds a substantial change in circumstances sufficient to warrant a modification. The court must now focus on the criteria of Conn. Gen. Statutes §§ 46b-82 and 46b-81.
. . . As we have stated, "[o]nce 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 . . . are relevant to the question of modification." (Internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994). Under § 46b-82, those criteria include "the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . ." General Statutes § 46b-81(a) provides in relevant part that "[a]t the time of entering a decree annulling or dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other . . ."
Gay v. Gay, 266 Conn. at 645
Further, the court "is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others." Cit. omitted. Graham v. Graham, 25 Conn.App. 41, 45 (1991).
The plaintiff ex wife at the time of the dissolution was awarded 60% of the assets. (T. defendant.) Her October 8, 2004 financial affidavit shows approximately $22,000.00 in assets remaining. The monies from the sale of the Westport property, the purchase and sale of the Guilford property are gone. The plaintiff rents a townhouse in Warrenton, Virginia. While no expert medical testimony was offered, the plaintiff testified, that her medical condition, specific psychological disorders, led to manic spending between 1996-2003. The plaintiff testified to the following conditions; diagnosis of hypothyroidism, 1995 diagnosis depression, 2000 diagnosis of anxiety, bipolar disorder and arthritis. She sees a psychiatrist on a regular basis and takes approximately six medications on a daily basis. Her health insurance does not pay for her prescriptions totaling $250.00 per month. The plaintiff further testified that she cannot work due to mental confusion and anxiety although she recently either started to work or put her name in as a substitute teacher. The plaintiff testified that she has spent the last 7 to 8 years researching a book on the children's ancestor, Brigadier General Winslow Scott Featherston. She has also spent considerable sums of money helping her daughters.
The court finds the testimony of both the plaintiff and the defendant to be credible. The plaintiff was extremely forthright concerning her tremendous difficulty with managing money and her "manic" spending. The court finds that her age coupled with her health and psychological disorders negate many sources of income. While she possesses some research skills, such are not to insure employability. The defendant, despite some health problems, is in a better position to secure employment. The court finds that the plaintiff is entitled to alimony, "continuing support." Gay v. Gay, 266 Conn. 641, 647 (2003).
The current financial affidavits detail assets to the plaintiff in the amount of $22,000.00 in contrast to the defendant in the sum of $862,192.00. At the time of the modification in May 2001, the defendant showed assets totaling $626,044. There has been a $236,148 increase in the defendant's assets between May 2001 and October 2004. The court will disregard the 401K and the Dreyfus Funds as those assets were received by the defendant at the time of dissolution pursuant to Conn. Gen. Stat. § 46b-81, Denley v. Denley, 38 Conn.App. 349, 353 (1995). Changes in value may be considered in determining modifications.
The fact that capital gains on property distributed at dissolution may not be considered income under § 46b-82 does not mean, however, that changes in the value of such property, whether realized or not, may never be taken into consideration by a court in considering a modification of alimony. The fact that the trial court has no authority to modify the assignment of property made at dissolution; see General Statutes § 46b-86(a); does not mean that the court cannot consider a change in the value of that property in determining whether there has been a substantial change of circumstances justifying the modification of an alimony award.5
Gay v. Gay, 266 Conn. at 648.
The court focuses on the checking and savings portion of the defendant's 2001 affidavit and the 2004 affidavit. In 2001 checking and savings totaled $13,400.00. In 2004 total checking and savings equaled $342,316.00, a substantial change in value. With no evidence to the contrary the court will assume that these monies were accumulated following the dissolution. Pursuant to Gay v. Gay, 266 Conn. at 648, n. 5, the court considers the amount of change of value, the nature of the property, its liquidity and the consequences to the parties of modifying the alimony award on the basis of change of value. The court also considers the needs of the plaintiff given her health. The defendant's motion for modification is granted based on a substantial change of circumstances. Alimony is ordered in the amount of two thousand three hundred fifty dollars per month retroactive to April 2004. Arrearage is calculated from April to the date of the Motion for Modification. Should either party become employed, they are to immediately provide counsel with details. The court will review this matter in six months. So ordered.
THE COURT
MARYLOUISE S. BLACK, JUDGE