Opinion
No. FA 04 0083905 S
August 23, 2007
MEMORANDUM OF DECISION (DEFENDANT'S MOTION TO MODIFY ALIMONY AND CHILD SUPPORT #137, 138)
The marriage between the parties was dissolved on October 21, 2004. Pursuant to the separation agreement, the judgment ordered the husband to pay alimony in the amount of $75.00 per week to the wife for a period of eight years non-modifiable as to duration, but to sooner terminate upon the death of either party or remarriage of the wife. Also, in the event of the wife's cohabitation with an unrelated male for a period of six months or longer, the court may modify, suspend, or terminate alimony as it determines to be equitable. (Connecticut General Statutes § 46b-86b.)
Alleging that the wife has been cohabiting with an unrelated male for longer than six months, and that her financial needs have changed, the husband seeks to reduce the alimony to $1.00 per year.
An evidentiary hearing on both motions was held on August 21, 2007. Both parties testified, as did Mark Guarino, the present fiancee of the wife, who admittedly has been living in a cohabiting relationship with the wife since January 2005.
Cohabitation, by itself, does not automatically result in a modification of alimony. The movant must prove that the cohabiting living arrangements have resulted in a change of circumstances that alter the financial needs of the receiving party. Gervais v. Gervais, 91 Conn.App. 840 (2005); DeMaria v. DeMaria, 247 Conn. 715, 720 (1999).
The evidence has not established that the wife's financial needs have been altered which would justify a modification of the alimony order at this time.
The wife has a modest income, earning $12 per hour as an administrative assistant for a local fuel delivery company. Even adding back $51 for a 401K deduction, her weekly net is approximately $313. The husband has been paying $300 in child support for three children, but one child is now age nineteen and child support will be reduced by $100. Adding those amounts it equals about $413 plus the $75 alimony before taxes totaling about $450 to $475 net weekly income. Her weekly expenses are about $750 per week and she owes her mother $10,500.
Mr. Guarino earns $18 per hour. His weekly net is about $475. His relationship with Ms. Marshall began after the parties divorced. At the time he owned his own home but that was destroyed by a fire just prior to January 2005 and that incident led to the cohabiting arrangement with Ms. Marshall. At the time of the fire Mr. Guarino and his then wife were going through a divorce and the ownership of their house was in dispute. That issue was resolved in 2006 and Mr. Guarino was able to go on with rebuilding the house. The work is expected to be completed in the winter of 2008 and he, together with Ms. Marshall expect to move into the completed house at that time (with her minor children). In the meantime Ms. Marshall has a month-to-month tenancy in her apartment in anticipation of the move when the house is ready. Also, in the meantime Mr. Guarino is continuing to make the carrying payments on his house including the mortgage, taxes and insurance.
He does not contribute to the plaintiff wife's rent or utilities or food. The wife explained that she would have to pay the rent whether or not he was there and there is no significant increase in utilities by his presence. They live modestly, going out to dinner a couple of times a month, usually when the children are visiting the husband.
The wife is apparently not extravagant with her food bill, managing to feed two adults and two children on $200 per week. (The husband spends $250 for himself and their adult child who resides with him.)
When the parties divorced the wife had no motor vehicle and could not afford to buy one. She drove her father's car for a time, and a loaner van from her employer when the car broke down. At present she is driving a car owned by Mr. Guarino which he insures and pays for. (He drives a second vehicle he owns.)
The Court concludes that Mr. Guarino is making a contribution in kind to the living expenses by providing a vehicle which the wife could not otherwise afford, and since his paying the mortgage, etc. on the home he owns which is not habitable there is legitimate financial need for the $75 alimony payment at this time for the seventeen-year marriage. It is equitable, under these circumstances to continue that payment. Further, Mr. Guarino cannot otherwise contribute to the wife's financial needs at this time.
Accordingly, the motion to modify alimony is denied.
With respect to the motion to modify child support, there were three minor children issue of the marriage. The oldest, Michelle Glidden was born on August 12, 1988. She is now nineteen years of age, out of school and residing with the husband. The child support order was $300 per week for all three children. The husband seeks a modification to $173 per week retroactive to the date of the motion while the wife argues for $216 per week without retroactivity.
The Court will grant the motion to modify child support to $200 per week for the two remaining minor children. Unreimbursed medical expenses for the two minor children shall be shared — 67% by the wife and 33% by the husband. An adjustment in the husband's child support guidelines worksheet is made for a claimed self-employment tax of $120 weekly ($6,240 annually) while the self-employment tax actually paid in 2006 is $1,543. The Court also notes the husband got a refund in 2006 of $2,500.
The modification of child support is in substantial compliance with the guidelines and is ordered to be retroactive to April 17, 2007, which is the date of filing of the motion. Connecticut General Statutes § 46b-86.
The delay between the filing of the motion and the hearing was not due to any action of either party and the Court perceives no equitable reason its order should not be retroactive.
The husband's request that he be credited $925 which is one half of the security deposit on the apartment rental which is the wife's residence is denied. The Court cannot revisit its orders of asset distribution. Hill v. Hill, 25 Conn.App. 452, 454-55. The Court notes that the wife is the sole tenant on the lease.
The existing financial orders are being enforced through the Bureau of Support. A copy of this decision shall be forwarded by the office of the Clerk to the Family Support Magistrate Division for an appropriate credit to the husband's existing arrearage.
The wife's motion for contempt dated July 3, 2007, (#144) shall be scheduled for a hearing before the Family Support Magistrate.