Opinion
FSTFA030196805S
03-27-2017
Mark Hanson v. Elizabeth Hanson
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS FOR MODIFICATION, POSTJUDGMENT
Donna Nelson Heller, J.
The plaintiff Mark Hanson commenced this action, returnable September 23, 2003, to dissolve his marriage to the defendant Elizabeth Hanson. A judgment of dissolution was entered on March 23, 2005 (Tierney, J.) (#165.55). The dissolution judgment incorporated by reference a separation agreement, dated the same day (the March 2005 separation agreement) (#163.10), entered into between the plaintiff, the defendant, and, as to financial matters, the defendant's conservator at the time, her sister Joanne Johnson.
On December 19, 2007, the plaintiff filed a motion for permission to relocate, postjudgment (#209.00). The court (Gordon, J.) granted the motion and entered custody, visitation, and financial orders, described more fully below, from the bench on June 23, 2008 (#248.00). The court entered further orders regarding relocation and custody on June 27, 2008 (#247.00; #248.00; #249.00).
On August 17, 2015, the plaintiff moved by order to show cause for modification of unallocated alimony and support, postjudgment (#263.01). The defendant filed a postjudgment motion for modification on February 2, 2016 (#275.00). Both parties also filed motions for counsel fees in connection with this proceeding (#283.00; #293.00; #295.01).
The parties were before the court on November 29 and 30, 2016. Both parties were represented by counsel. The court heard testimony from four witnesses, including the parties, reviewed the exhibits that were admitted into evidence, heard the arguments of counsel, and took judicial notice of the contents of the court file. For the reasons set forth below, the plaintiff's motion for modification, postjudgment (#263.01) is granted. The defendant's motion for modification, postjudgment (#275.00) is denied.
I
After considering all of the testimony and documentary evidence admitted and the contents of the court file judicially noticed, and having had the opportunity to observe the witnesses and consider the arguments of counsel, the court makes the following findings of fact.
The plaintiff and the defendant were married on September 16, 1989. They are the parents of two children: Kathryn Wagner Hanson (Katie), born on March 12, 1993, and Thomas James Hanson (Tommy), born on April 10, 1998. Katie is now in graduate school. Tommy is a freshman in college.
The plaintiff is fifty-eight years old. He is a vice president with the firm of Hazen and Sawyer, an engineering consulting firm, in New York City. He commutes to work from his home in Rye, New York. His annual base salary is $195,000. He is eligible for an annual performance-based bonus, with a guaranteed minimum of $40,000 for 2016 (pro-rated) and 2017. He was also awarded a $10,000 signing bonus when he joined Hazen and Sawyer in August 2016.
The defendant is fifty-seven years old. She graduated from Colgate University in 1981 with a degree in economics. She was employed in banking in New York City in the early years of the parties' marriage. She last worked as a senior investment manager at GE Capital. She was fired from that position in 1997. The defendant has not been employed since she left GE Capital, although she has occasionally earned some income from dog-walking.
The defendant was diagnosed with severe post-partum depression and bipolar disorder approximately twenty years ago. In April 1998, the Social Security Administration determined that she was permanently disabled as a result of her mental illness. The defendant has been receiving Social Security disability benefits since that time.
Paragraph 3.2 of the March 2005 separation agreement, incorporated by reference in the dissolution judgment, provided that the plaintiff would pay the defendant $2,500 per month as unallocated alimony and support until " the death of the Husband, the death of the Wife, the Wife's remarriage, or cohabitation pursuant to statute, whichever event shall first occur . . ." Paragraph 3.2 further provided that, on or after seven years from the date of entry of the dissolution judgment, " there shall be a second look de novo at the amount and duration of alimony, if any, to be paid by the [plaintiff] to the [defendant] upon a motion filed by the [plaintiff]. The parties understand that the Court at that time may continue, modify, or terminate the amount and/or duration of the alimony." The plaintiff is seeking this de novo second look in the postjudgment motion for modification that is before the court.
In December 2007, the plaintiff filed a postjudgment motion for permission to relocate with the minor children from Wilton, Connecticut to either Greenwich, Connecticut or Rye Brook, New York to be closer to his employment in White Plains, New York (#209.00). The defendant opposed the motion.
Following a hearing in June 2008, the court (Gordon, J.) granted the relief requested by the plaintiff with respect to custody and relocation (#247.10). The court also modified the alimony award to the defendant under the March 2005 separation agreement, as incorporated in the dissolution judgment (the June 2008 modification orders).
The court found that there had been a substantial change in circumstances from the date of the dissolution judgment to the time of the hearing because the plaintiff's income had nearly doubled and the defendant's assets had diminished, due in part to her liquidating some of her assets to meet her expenses. The court awarded alimony to the defendant in the amount of $4,000 per month and ordered that the Social Security benefits payable to Katie and Tommy, as the children of a disabled person, would continue to be paid to the defendant, as set forth in paragraph 3.4 of the March 2005 separation agreement.
The plaintiff's April 25, 2008 financial affidavit (#228.00) reported that he had net weekly income of $3,501, including the children's Social Security benefits in the amount of $223. He had total weekly expenses of $3,422, including rent in the amount of $923, and total weekly liability expenses of $560. His assets were valued at $699,200, and his liabilities totaled $342,615.
The defendant's June 12, 2008 financial affidavit (#238.00) reported that she had total net monthly income of $3,922 from Social Security disability payments for her and the children. She had total monthly expenses of $11,846, including rent in the amount of $3,850. Her assets were valued at $236,500, and her liabilities totaled $199,802.
In addition to the monthly alimony payment of $4,000, the court ordered the plaintiff to pay a separate alimony award to the defendant of $6,000 annually, at the rate of $500 per month, for the " medical psychiatric costs" that she incurred. The court also increased the amount of life insurance to be maintained by the plaintiff as security for the alimony award from $425,000 to $1,000,000. These are the financial orders that the plaintiff now asks the court to modify.
Following entry of the June 2008 modification orders, the plaintiff and his girlfriend Doreen Bartoldus (Ms. Bartoldus) purchased the property located at 3 Fairlawn Parkway in Rye Brook, New York for $780,000 (the Fairlawn Parkway property). The 2, 200-square foot house has three bedrooms and two bathrooms. The plaintiff was granted sole legal and physical custody of Katie and Tommy under the June 2008 modification orders.
The plaintiff testified that Ms. Bartoldus contributed 25 percent of the down payment when they purchased the Fairlawn Parkway property.
The defendant was living in a rented house at the time the June 2008 modification orders were entered. In 2009, she moved to the guest apartment at the home of her friends Carolyn Wheeler (Ms. Wheeler) and Gregory Wheeler (Mr. Wheeler) (collectively, the Wheelers), located at 19 Valeview Road in Wilton, Connecticut (the Valeview Road property).
Ms. Wheeler and the defendant first met in college in 1978.
The defendant resided in the Wheelers' guest apartment for five years. The apartment is above the garage to the main house on the Valeview Road property. It does not have a separate entrance. The defendant did not pay any rent or utilities while she lived in the Wheelers' guest apartment, except for making a partial payment toward the cable bill from time to time. She assisted the Wheelers by walking their dogs, running errands for them, watering their plants, and taking care of their house when they went away.
The plaintiff was entitled to a de novo second look at the amount and duration of the alimony award under paragraph 3.2 of the March 2005 separation agreement as of March 23, 2012, seven years after the dissolution judgment was entered. The plaintiff testified that he decided to forego the second look at that time because he had been in court in 2008, and it seemed too soon. He wanted to wait until Katie and Tommy were out of the house and in college before he went back to court. He was afraid that the defendant would involve the children in the dispute, and he did not want that to happen.
In 2013, the Wheelers advised the defendant that she would have to vacate the guest apartment. The defendant began to look for a suitable place to live. She found a house located at 229 Linden Tree Road in Wilton (the Linden Tree Road property) that was for sale. The house has three bedrooms, with a partially finished basement that can be converted to a bedroom. It is on a two-acre lot, with a pool.
The plaintiff testified that the Fairlawn Parkway property does not have a pool.
The defendant asked the Wheelers to assist her in purchasing the Linden Tree Road property, and they agreed to do so. The Wheelers and the defendant formed a Connecticut limited liability company, 229 Linden Tree Road, LLC, to purchase the Linden Tree Road property. The defendant, Ms. Wheeler, and Mr. Wheeler are the members of 229 Linden Tree Road, LLC. Ms. Wheeler is the manager.
The Wheelers contributed $162,000 to the down payment for the purchase of the Linden Tree Road property. They obtained a mortgage for $427,500 to apply to the balance of the purchase price. The defendant is not a party to the mortgage, but she contributed approximately $12,000 to $13,000 to the down payment. The closing took place on September 16, 2013. The purchase price of the Linden Tree Road property was $570,000.
Under the terms of the 229 Linden Tree Road, LLC operating agreement, the Wheelers are to be reimbursed in full upon a sale of the Linden Tree Road property before the defendant receives the capital that she contributed. The defendant is also responsible for paying the mortgage, property taxes, homeowner's insurance, utilities, and other expenses, such as maintenance and repairs, on the Linden Tree Road property under the operating agreement. Her total monthly housing expense is $4,023, according to her current financial affidavit.
In August 2015, the plaintiff filed the motion for modification of alimony and support, postjudgment (#263.01) that is now before the court. The plaintiff represents in his motion that there has been a substantial change in circumstances since the June 2008 modification orders were entered. The defendant was served by abode service at the Linden Tree Road property on September 1, 2015 (#264.00).
On October 2, 2015, the defendant's then counsel sought a continuance of the hearing on the plaintiff's motion for modification, postjudgment, until early December 2015. Counsel represented to the court that the defendant's medical condition had worsened beginning in the summer of 2015, and it remained poor (#265.00). The defendant was committed to Silver Hill Hospital during the period December 4, 2015 through January 8, 2016.
In an objection to the plaintiff's motion to appoint a conservator for her (#282.00), filed by the defendant on April 20, 2016 when she was representing herself, the defendant claimed that the plaintiff's filing the motion for modification, postjudgment in August 2015 precipitated a major psychiatric break which resulted in her hospitalization.
The defendant failed to make the December 2015 mortgage payment because she was in Silver Hill Hospital, but she reimbursed the Wheelers after she was discharged. The defendant paid the mortgage on the Linden Tree Road property from January through May 2016.
At some point in October 2015, the defendant began to submit her bills for mental health treatment to the plaintiff for reimbursement as provided in the June 2008 modification orders. The plaintiff has paid approximately $3,000 to the defendant for her psychiatric expenses since that time. The defendant testified that she did not submit these bills to her health insurance carrier first because, in her experience, the insurance company would not pay them.
In May 2016, the plaintiff and Ms. Bartoldus listed the Fairlawn Parkway property for sale. The house is currently on the market for $910,000. The plaintiff testified that they are selling the Fairlawn Parkway property in order to downsize in anticipation of retirement. They want to reduce their expenses now that Tommy has gone to college. They plan to rent an apartment after they sell the Fairlawn Parkway property.
The plaintiff attempted to prosecute his motion for modification, postjudgment, from August 2015 through August 2016. On August 5, 2016, he moved for issuance of a capias, postjudgment (#285.01) against the defendant after she did not appear for her deposition pursuant to a subpoena duces tecum. The defendant failed to appear at the August 22, 2016 hearing on the plaintiff's motion for issuance of a capias, postjudgment. The court (Jacobs, J.) granted the motion, and the capias was issued on August 23, 2016. The defendant's deposition was re-noticed for August 30, 2016. She again failed to appear. The capias was never served on the defendant.
On September 15, 2016, the defendant was admitted to Brunswick Hall, the psychiatric hospital at the Brunswick Hospital Center in Amityville, New York, for severe psychotic behavior. She was discharged on October 4, 2016 with an appointment for aftercare psychiatric treatment in an intensive outpatient treatment program in Norwalk, Connecticut.
From June through October 2016, the Wheelers paid the mortgage on the Linden Tree Road property. The defendant paid the mortgage for the month of November 2016. Ms. Wheeler testified that she and her husband planned to reconcile the expenses that they had covered with the defendant but they had not yet done so. The defendant continues to reside in the house on the Linden Tree Road property.
The plaintiff's current financial affidavit, dated November 16, 2016, reports gross weekly income of $3,750 and net weekly income of $2,721 from his employment with Hazen and Sawyer. He has weekly expenses of $2,798 and weekly liability expenses of $675. His assets are valued at $1,860,539, half of which is in retirement accounts. His liabilities total $113,799. As set forth in an affidavit of attorneys fees submitted in support of his motion for counsel fees, postjudgment, the plaintiff has incurred $17,209.50 in attorneys fees in prosecuting the motion for modification, postjudgment.
The plaintiff testified that Ms. Bartoldus pays approximately 25 percent of the household expenses. The expenses listed on his financial affidavit represent his 75 percent.
According to the defendant's current financial affidavit, dated November 23, 2016 (#301.00), she has gross monthly income of $6,118 and net monthly income of $5,017, comprised of alimony and Social Security disability benefits. Her monthly expenses total $7,534. Her financial affidavit reflects assets valued at $63,339 and liabilities of $180,920. Her liabilities include a $175,000 obligation to the Internal Revenue Service for several years of unpaid income taxes. The defendant has incurred $21,352.50 in attorneys fees in defending against the plaintiff's motion for modification, postjudgment, and in prosecuting her motion for modification, postjudgment, as set forth in the affidavit of counsel fees submitted by her attorney.
II
The plaintiff seeks the termination or modification of his $4,000 per month alimony obligation to the defendant, the additional alimony of $6,000 annually for the defendant's mental health treatment, and the $1,000,000 life insurance policy that he is required to maintain, on three grounds: (i) that when the defendant resided in the Wheelers' guest apartment for five years, that constituted cohabitation under General Statutes § 46b-86(b) and thus terminated the alimony award; (ii) that he is entitled to a de novo second look at the parties' financial circumstances under the March 2005 separation agreement; and (iii) that there has been a substantial change in circumstances warranting modification under General Statutes § 46b-86(a). The defendant objects to any downward modification of alimony or life insurance. She seeks additional alimony in her motion for modification, postjudgment and represents that her psychiatric costs and personal expenses have increased.
A
The court will begin with the plaintiff's claim regarding cohabitation. The plaintiff contends that his alimony obligation to the defendant terminated when she moved into the Wheelers' guest apartment in 2009. According to the plaintiff, the defendant's living arrangement constituted cohabitation under General Statutes § 46b-86(b). The defendant maintains that she was not cohabiting with the Wheelers because she occupied a separate apartment on the Valeview Drive property. The court agrees.
General Statutes § 46b-86(b) provides in pertinent part that " [i]n an action for divorce, dissolution of marriage, legal separation or annulment brought by a spouse, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other spouse, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic 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 the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party. In the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith."
Under General Statutes § 46b-86(b), the court may, inter alia, " terminate the payment of periodic 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 the . . . termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party." General Statutes § 46b-86(b). The plaintiff has failed to make such a showing here. While the defendant's living arrangements between 2009 and 2013, when she occupied the Wheelers' guest apartment rent-free, undoubtedly resulted in a change of circumstances that altered her financial needs, there is no evidence that the defendant was living with another person (i.e., the Wheelers)--a necessary element of cohabitation under the statute. See Fazio v. Fazio, 162 Conn.App. 236, 240 n.1, 131 A.3d 1162, cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016) (" Therefore, if cohabitation is defined by § 46b-86(b) and not by some provision within the agreement itself, a finding of cohabitation requires that (1) the alimony recipient was living with another person and (2) the living arrangement caused a change of circumstances so as to alter the financial needs of the alimony recipient." (Citation omitted.)
B
General Statutes § 46b-86(a) provides in pertinent 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 requiring either party to maintain life insurance for the other party . . . 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 . . ." General Statutes § 46b-86(a). Subsection (b) of § 46b-86 adds that " [i]n the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith." General Statutes § 46b-86(b). " When a modification of alimony is requested on the basis of the separation agreement, the court must look to the agreement. Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts." (Citation omitted; footnote omitted; internal quotation marks omitted.) Cushman v. Cushman, 93 Conn.App. 186, 190-91, 888 A.2d 156 (2006).
Although the plaintiff's motion is styled as a motion for modification, postjudgment, the parties agree that this proceeding is the de novo second look to which the plaintiff is entitled under the March 2005 separation agreement. " A second look is defined as a de novo examination of the parties' entire financial circumstances as of that future date on which the second look is to take place." Arenholz v. Arenholz, Superior Court, judicial district of Fairfield, Docket No. FA-00-0377731-S, (Jan. 10, 2013, Owens, J.T.R.). " The second look [is] to be a consideration of the parties' financial circumstances de novo, as if it were an initial determination of alimony, requiring the application of § 46b-82 criteria." Cushman v. Cushman, supra, 93 Conn.App. at 191.
The defendant points out that a second look can result in an upward modification as well as a downward modification of alimony. In her motion for modification, postjudgment, the defendant is seeking an increase in alimony because her expenses have increased since the June 2008 modification orders were entered.
Under General Statutes § 46b-82(a), " [i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court shall . . . consider the length of the marriage, the causes for the . . . dissolution of the marriage . .., the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, 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-82(a). The court must fashion its financial orders on the basis of the available net income of the parties, not on their gross income. Hughes v. Hughes, 95 Conn.App. 200, 204, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006). " [W]hat a spouse can afford to pay for support and alimony is a material consideration in the court's determination as to what is a proper order." (Citation omitted; internal quotation marks omitted.) Panganiban v. Panganiban, 54 Conn.App. 634, 642-43, 736 A.2d 190 (1999). " A party's ability to pay is a material consideration in formulating financial awards." (Citation omitted.) Utz v. Utz, 112 Conn.App. 631, 635, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009); see Cleary v. Cleary, 103 Conn.App. 798, 807, 930 A.2d 811 (2007).
In taking a second look at the parties' financial circumstances in order to fashion new financial orders, the court has considered all of the factors set forth in General Statutes § 46b-82(a). Some of these factors are particularly relevant. The parties were married for fifteen and a half years before their divorce twelve years ago. For the last twenty years, the plaintiff has provided all of the financial support for the parties' children and the majority of the financial support for the defendant.
The plaintiff is currently employed. He commutes to his job at Hazen and Sawyer in New York City from his home in Rye, New York. At the age of fifty-eight, he is starting to plan for his retirement. He and Ms. Bartoldus have listed the Fairlawn Parkway property for sale. They intend to downsize and move into an apartment to reduce their expenses in preparation for retirement.
The plaintiff's income is not sufficient to meet his expenses. According to his current financial affidavit, his weekly expenses, including his weekly liability expenses, total $3,473 and exceed his net weekly income of $2,721 by $752. The plaintiff has $971,657 in retirement assets. In addition to his retirement accounts, the plaintiff has assets valued at $888,882. His liabilities total $113,799.
The defendant has not been employed since 1997. After she was fired from her position at GE Capital, she was diagnosed with severe post-partum depression and bipolar disorder. She has been committed twice to psychiatric hospitals in recent years. In addition to her mental health issues, she suffers from diabetes and high blood pressure. She is on medication to control and treat her mental and physical illnesses. The defendant acknowledged that she has, in the past, proclaimed her desire to return to work, but she testified that it would be difficult for her now, due to her physical health issues and fatigue as well as the side effects of her medication. The defendant's primary care physician, Dr. Craig Olin, testified that from 2005 to the present, the plaintiff's physical condition has gotten worse. The court credits Dr. Olin's testimony.
The plaintiff suggests that the defendant is now capable of gainful employment and should be able to support herself, notwithstanding the Social Security Administration's determination that she is permanently disabled. The court finds it highly unlikely that the defendant will be able to rejoin the work force. If the court were to find that the defendant had a present earning capacity, it would only be at the minimum wage level. While the plaintiff is intelligent and articulate, her mental health seems to be still somewhat fragile and her fatigue is apparent.
The defendant has no income apart from the $4,000 in alimony that she receives each month from the plaintiff and her monthly Social Security disability benefits of $2,118. Her net monthly income is $5,017. She also receives a monthly psychiatric expense reimbursement from the plaintiff of up to $500. She reports total monthly expenses of $7,534. Her assets have diminished over the years. She currently has assets valued at $63,339. Her debts have increased since the June 2008 modification orders, due primarily to her failure to pay federal income taxes for several years. Her liabilities total $180,920.
Although the alimony award to the defendant in the June 2008 modification orders was predicated in part on the $3,850 monthly rent that she reported in her June 12, 2008 financial affidavit, her expenses were significantly reduced when she moved into the guest apartment on the Valeview Drive property in 2009. For the five years that she resided in the Wheelers' guest apartment, the defendant did not pay any rent or utility bills, with the exception of contributing to the cable bill from time to time. The Wheelers generously permitted her to live in their guest apartment rent-free, while she continued to collect alimony of $4,000 per month from the plaintiff during this time.
Since September 2013, the defendant has resided in the Linden Tree Road property--in a three-bedroom house that was essentially purchased for her benefit by the Wheelers, who acquired the property as an investment. The defendant is responsible for the mortgage, real property taxes, insurance, and maintenance expenses for the Linden Tree Road property under the 229 Linden Tree Road, LLC operating agreement. Her current housing expenses consume 80 percent of her monthly net income. Even with the existing alimony award of $4,000 per month, the defendant is not able to pay these housing costs and have enough money left for her other living expenses.
The plaintiff seeks to have his alimony obligation to the defendant reduced or eliminated on this de novo second look. It is apparent that any reduction in the alimony awarded to the defendant will make it more difficult for her to pay the expenses for which she is contractually liable under the 229 Linden Tree Road, LLC operating agreement, but even today the defendant's financial arrangement with the Wheelers is untenable. This is an issue to be addressed between the defendant and the Wheelers, however; the plaintiff has no obligation to the Wheelers to ensure that the mortgage on their investment property is paid in full.
As discussed above, the plaintiff was to pay alimony to the defendant until the death of either party or the defendant's remarriage or cohabitation under the statute pursuant to the March 2005 separation agreement and the June 2008 modification orders. The reasons underlying the award of lifetime alimony to the defendant still exist: the defendant suffers from bipolar disorder and other mental and physical health issues that prevent her from rejoining the work force. Accordingly, the court finds that an award of lifetime alimony to the defendant remains appropriate here.
While the alimony term shall continue without limitation, the amount of alimony to be paid by the plaintiff to the defendant each month shall be reduced. It is not fair or equitable to order the plaintiff, who is selling his three-bedroom house and moving into an apartment to reduce his expenses, to pay more in alimony than he can afford so that the defendant can live alone in a three-bedroom house and carry the mortgage on the Wheelers' investment property.
Accordingly, the plaintiff shall pay to the defendant the sum of $3,250 per month as and for periodic alimony, until the earliest of the death of either party, the defendant's remarriage, or the defendant's cohabitation within the meaning of General Statutes § 46b-86(b), effective April 1, 2017. The plaintiff shall pay alimony to the defendant on the first day of each month. Said alimony shall be taxable income to the defendant and shall reduce the gross income of the plaintiff. This award may be modified pursuant to General Statutes § 46b-86.
A monthly alimony payment of $3,250 represents approximately 20 percent of the plaintiff's gross income. With her Social Security disability benefits and $3,250 in alimony, the defendant will have approximately 34 percent of the parties' combined net monthly income.
The plaintiff did not seek an alimony award. No alimony is awarded to the plaintiff.
2
The plaintiff also asks the court to reduce or terminate his obligation to pay additional alimony for the defendant's medical psychiatric expenses in the amount of $6,000 annually pursuant to the June 2008 modification orders. The defendant seeks an upward modification in the amount of psychiatric costs for which the plaintiff is required to reimburse her, alleging in her motion for modification, postjudgment (#275.00) that her psychiatric costs and personal expenses have drastically increased.
The court (Gordon, J.) urged the defendant to seek individual therapy when she issued the June 2008 modification orders on the record. Notwithstanding the court's encouragement at that time, it appears that the defendant did not seek mental health services or reimbursement for the expenses that she incurred until 2015. Moreover, she has not sought therapy with a provider who accepts Medicare or submitted the bills to her secondary provider, Anthem/Blue Cross Blue Shield, before sending them to the plaintiff.
The defendant should use the health care coverage available to her for the mental health services that she needs. Accordingly, this separate alimony award will terminate, effective April 1, 2017.
3
The plaintiff also asks that the court reduce or eliminate his obligation to maintain $1,000,000 in life insurance for the benefit of the defendant. The court finds that a reduction in the face amount of the life insurance that the plaintiff is required to maintain is appropriate in view of the de novo alimony award of $3,250 per month.
The plaintiff has an average life expectancy of 24.9 years, according to the Social Security Administration's Life Expectancy Calculator . Assuming that the defendant does not remarry, cohabit under General Statutes § 46b-86(b), or predecease him, the plaintiff will pay the defendant a total of approximately $971,000 in alimony during that time. The present value of this amount will vary, depending upon the applicable discount rate. Applying a discount rate of 3.75 percent, the present value to the defendant would be approximately $388,000. Therefore, the plaintiff shall maintain a life insurance policy for the benefit of the defendant in the face amount of $400,000, which is more than sufficient to secure his alimony obligation to her.
The court has followed the methodology articulated in Cox v. Cox, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-FA-98-0168237-S, (Jan. 6, 2012, Tierney, J.).
3.75 percent is the current prime rate, as reported by The Wall Street Journal at www.wsj.com.
4
The defendant has moved for an increase in the monthly alimony paid to her on the ground that her psychiatric costs and personal expenses have increased. The court finds that the defendant has not sustained her burden of proof with respect to her postjudgment motion for modification. The defendant's expenses increased primarily because she has assumed all of the Wheelers' costs, including the mortgage, for the Linden Tree Road property. The financial arrangement between the defendant and the Wheelers appears to have been untenable from the outset, since the defendant was agreeing to commit approximately 80 percent of her net monthly income to pay for the Linden Tree Road property. As discussed above, the plaintiff has no obligation to the Wheelers to cover the expenses of their investment property.
C
Because the court has taken a de novo second look at the parties' financial circumstances pursuant to paragraph 3.2 of the March 2005 separation agreement and entered new orders accordingly, the court does not need to reach the plaintiff's claim that that the alimony and life insurance orders set forth in the June 2008 modification orders should be modified pursuant to General Statutes § 46b-86(a) due to a substantial change in the parties' circumstances. " Here, by the terms of the separation agreement, the parties had already agreed on events that would constitute a substantial change." Taylor v. Taylor, 117 Conn.App. 229, 233-34, 978 A.2d 538, cert. denied, 294 Conn. 915, 983 A.2d 852 (2009) (trial court correctly determined that it did not need to find a substantial change of circumstances and properly conducted a de novo review).
III
Both parties have filed motions for attorneys fees in connection with this proceeding. The plaintiff seeks to recover the attorneys fees that he incurred in attempting to prosecute his motion for modification, postjudgment for more than a year while the defendant sought several continuances and failed to appear at her deposition or for a capias hearing. In view of the defendant's two psychiatric hospitalizations and her mental health issues during the time that the plaintiff's motion has been pending, however, the court declines to award attorneys fees to the plaintiff. The plaintiff's motion for counsel fees, postjudgment (#293.00) is denied.
The defendant shall also be responsible for her own attorneys fees, as it would not be fair and equitable under the circumstances for the court to require the plaintiff to pay them on the defendant's behalf. To order otherwise would undermine these financial orders. The defendant's motions for counsel fees, postjudgment (#283.00; #295.01) are denied.
IV
The court has fully considered the applicable statutes, including the factors enumerated in General Statutes § 46b-82(a), as well as the relevant case law, the evidence, the court records judicially noticed, the demeanor and the credibility of the witnesses, and the arguments of counsel, in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.
1. The plaintiff's motion for modification, postjudgment (#263.01) is GRANTED. It is hereby ORDERED as follows:
a. The plaintiff shall pay to the defendant the sum of $3,250 per month as and for periodic alimony, until the earliest of the death of either party, the defendant's remarriage, or the defendant's cohabitation within the meaning of General Statutes § 46b-86(b). The plaintiff shall pay alimony to the defendant on the first day of each month. Said alimony shall be taxable income to the defendant and shall reduce the gross income of the plaintiff. This award may be modified pursuant to General Statutes § 46b-86.
b. The plaintiff shall maintain a life insurance policy for the benefit of the defendant in the face amount of $400,000.
2. The defendant's motion for modification, postjudgment (#275.00) is DENIED.
3. The plaintiff's motion for counsel fees, postjudgment (#293.00) is DENIED.
4. The defendant's motions for counsel fees, postjudgment (#283.00; #295.01) are DENIED.